UC-NRLF 


&Y 

F  CALIFORNIA 
DAVIS 


american 


EDITED   BY 


JOHN  T.  MORSE,  JR. 


American  £tatc$'mcn 


JOHN 


BY 

GEORGE  PELLEW 


BOSTON  AND  NEW  YORK 
HOUGHTON,  MIFFLIN  AND  COMPANY 


1890 


LIBRARY 

UNIVERSITY  OF  CALIFORNIA 
DAVIS 


Copyright,  1890, 
B*    GEORGE  PELLEW. 

All  rights  reserved. 


Tfie  Riverside  Press,  Cambridge,  Mass.,  U.  S.  A.: 
Electrotyped  and  Printed  by  H.  0.  Houghton  &  Company. 


PREFACE. 


THE  public  life  of  John  Jay  was  so  active  and 
varied  that  it  is  almost  impossible  to  compress 
the  essential  facts  in  a  small  compass  without 
losing  much  of  their  interest  and  suggestiveness. 
Moreover,  he  was  by  disposition  so  reticent  and 
unimpulsive,  so  completely  self-controlled,  that 
there  is  scarcely  any  material  for  constructing 
a  history  of  his  inner  private  life.  He  was 
singularly  free  from  those  faults  which,  trivial 
or  serious,  attract  men's  love  by  exciting  their 
sympathy  or  pity.  Conscientious,  upright,  just, 
and  wise,  John  Jay,  like  Washington,  survives 
in  the  popular  imagination  as  an  abstract  type 
of  propriety ;  and  his  fair  fame  has  been  a  con- 
spicuous mark  for  all  who  are  offended  by  hear- 
ing an  Aristides  always  called  the  Just,  or  who, 
from  an  a  priori  notion  of  history,  believe  that 
statesmen  have  always  been  as  corrupt,  civic 


IV  PREFACE. 

virtue  as  tainted,  and  politics  as  demoralizing1 
as  they  are  in  our  time.  In  this  belief  there  is 
undoubtedly  much  truth,  —  but  there  are  excep- 
tions to  most  rules,  or  rather  what  is  true  of  a 
generation  in  the  average  is  never  true  of  every 
individual  comprised  in  it,  —  and  a  careful 
study  confirms  the  contemporary  opinion  that 
the  character  of  Jay  was,  unfortunately  for 
mankind,  exceptional. 

Any  life  of  John  Jay  must,  of  course,  be 
based  on  the  two  volumes  of  his  Life  and  Letters 
by  his  son,  Judge  William  Jay ;  but  an  undue 
sense  of  the  sanctity  of  domestic  life  prevented 
then  the  publication  of  anything  not  clearly  of 
a  public,  almost  of  an  official,  nature.  Subse- 
quently, as  the  Works  and  Letters  appeared 
of  Washington,  John  Adams,  Madison,  Jeffer- 
son, Fisher  Ames,  and  the  other  [Revolutionary 
patriots,  and  the  gleanings  of  Sparks  and  others 
from  the  government  papers,  more  light  was 
thrown  on  the  motives  and  movements  of  the 
time,  and  Jay's  life  was  rewritten  by  Flanders, 
who  dispelled,  almost  for  the  first  time,  the 
odium,  begotten  by  partisanship  of  ignorance, 


PREFACE.  V 

that  so  long  assailed  the  memory  of  the  early 
Federalists.  Certain  popular  prejudices  still 
survived  from  the  days  when  blind  devotion  to 
France,  a  veritable  "  love  frenzy,"  was  a  test  of 
party  fealty,  and  these  prejudices  obscured  any 
clear  view  of  the  peace  negotiations  of  1782. 
Sparks,  editing  official  documents,  interjected 
with  misleading  positiveness  a  note  that  Jay's 
suspicions  of  France  were  unfounded,  —  and 
this  suggestion,  itself  unfounded,  has  until  re- 
cently been  followed  implicitly  by  historians, 
even  by  Mr.  Bancroft.  A  hundred  years  after 
the  event,  papers  from  the  French  archives  pub- 
lished by  De  Circourt,  the  correspondence  be- 
tween Vergennes  and  Luzerne,  Fitzherbert  and 
Fox,  Oswald  and  Shelburne,  in  the  "  Stevens 
MSS."  and  the  revelations  in  Fitzmaurice's 
"  Life  of  Shelburne,"  enabled  the  Honorable 
John  Jay  to  prove  the  absolute  correctness  of  his 
grandfather's  convictions,  and  the  consequent 
necessity  of  the  course  of  action  he  adopted. 
This  new  information  has  not  yet  been  incorpo- 
rated into  any  life  of  Jay. 

Within  the   last  year  the  third  volume   has 


vi  PREFACE. 

been  published  of  Doniol's  "  La  participation  de 
la  France  dans  Fetablissement  de  1'independance 
des  Etats-Unis,"  which  contains  the  official  doc- 
uments relating  to  the  treaty  of  Aranjuez,  eluci- 
dating with  extreme  fullness  the  relations  be- 
tween the  courts  of  Paris  and  Madrid  in  the 
critical  years  of  1778,  1779.  The  "  Jay  MSS.," 
from  which  a  selection  is  now  preparing  for  pub- 
lication, and  an  elaborate  digest,  with  quota- 
tions, of  the  "  Stevens  MSS.,"  have  also  been 
studied  with  minute  care  ;  and  to  these  sources, 
and  to  the  constant  valuable  suggestions  and 
criticisms  of  my  uncle,  the  Honorable  John  Jay, 
is  due  whatever  of  new  or  original  may  be  found 
here.  GEORGE  PELLEW. 

NEW  YORK,  March  1,  1890. 


CONTENTS. 


CHAPTER  PAGB 

I.  YOUTH,  1745-1774          .......      1 

II.   CONSERVATIVE  WHIG  LEADER,  1774-1776        .        23 

III.  REVOLUTIONARY  LEADER,  1776-1779   .        .        .59 

IV.  CONSTRUCTIVE  STATESMAN,  1778,  1779     .        .        76 
V.  PRESIDENT  OF  CONGRESS,  1779     ....  105 

VI.  MINISTER  TO  SPAIN,  1779-1782         .        .        .120 
VII.  NEGOTIATOR    OF    PEACE  :    THE    ATTITUDE    OF 

FRANCE  IN  1782 144 

VIII.    THE  NEGOTIATIONS,  1782,  1783         .        .        .      !»>(> 
IX.  SECRETARY  FOR  FOREIGN  AFFAIRS,  1784-1789   .  229 
X.  CHIEF  JUSTICE  OF  THE  UNITED  STATES,    1789- 

1795 202 

XI.  SPECIAL  ENVOY  TO  GREAT  BRITAIN,  1794,  1795  294 

XII.   GOVERNOR  OF  NEW  YORK,  1795-1801     .        .      318 

XIII.   IN  RETIREMENT,  1801-1829  .  340 


JOHN  JAY. 


CHAPTER  I. 

YOUTH. 

1745-1774. 

JOHN  JAY,  the  eighth  child  and  sixth  son  of 
Peter  Jay  and  Mary,  the  daughter  of  Jacobus 
Van  Cortlandt,  was  born  in  the  city  of  New 
York,  on  the  12th  of  December,  1745.  His 
father  was  a  wealthy  merchant,  who  retired 
from  business  at  the  age  of  forty  to  live  at  a 
country  house  and  farm  at  Rye  in  Westchester 
County.  The  family  was  of  French  descent; 
the  great  grandfather,  Pierre  Jay,  a  Huguenot 
merchant  of  La  Rochelle,  left  France  on  the 
revocation  of  the  Edict  of  Nantes,  when  the 
greater  part  of  his  property  was  confiscated, 
and  died  in  England.  The  grandfather,  Augus- 
tus, after  many  hazardous  adventures,  settled 
in  New  York  in  1686,  where  he  married  Anna 
Maria  Bayard,  a  descendant  of  a  Protestant 


2  JOHN  JAY. 

professor  of  theology  at  Paris,  who  had  like- 
wise chosen  to  leave  his  country  for  religion's 
fcake,  making  his  home  in  Holland.  Through 
his  wife's  relations,  the  Bayards  and  Stuyve- 
sants,  and  his  brother-in-law,  Stephen  Peloquin, 
a  merchant  of  Bristol,  England,  Augustus  Jay 
soon  formed  a  large  business  connection.  From 
Bristol  came  invoices  of  kerseys  and  mohairs, 
hats,  gloves,  and  beer ;  to  the  Barbadoes  he 
shipped  flour,  bread,  pork  and  hams,  receiving 
in  return  cargoes  of  sugar  and  rum ;  and  occa- 
sionally his  ships  made  adventures  to  Surinam. 
Peter  Jay  soon  became  a  partner  with  his  father ; 
in  1740  his  name  appears  as  one  of  the  alder- 
men of  the  city  of  New  York ;  and  the  family 
was  allied  with  the  manorial  families  of  Van 
Cortlandt  and  Philipse,  to  which  was  soon  to  be 
added  the  most  influential  of  all,  the  family  of 
Livingston. 

From  Peter  Jay,  who  seems  to  have  been  a 
typical  New  York  merchant  of  the  last  century, 
"  a  gentleman  of  opulence,  character,  and  repu- 
tation," 1  his  son  John  inherited  many  marked 
traits  of  character,  as  is  testified  by  the  now  yel- 
lowing pages  of  the  old  merchant's  letter  book. 
In  letters  to  his  son  James,2  in  England,  even 

1  Jones,  History  of  New  York,  ii.  223. 

2  Afterwards  knighted  for  his  success  in  raising-  funds  in 
England  for  King's  College,  now  Columbia  College,  a  member 


YOUTH.  3 

in  the  brief  business-like  notices  of  the  death  of 
relations,  is  shown  the  piety  of  the  man  and  of 
the  family :  "  Let  us  endeavor  to  adhere  to  the 
worship  of  God,  and,  observing  his  holy  ordi- 
nances as  the  rule  of  our  lives,  let  us  disregard 
the  wicked  insinuations  of  libertines,  who  not 
only  deride  our  most  Holy  Religion  and  the 
professors  of  it,  but  also  endeavor  to  gain  prosi- 
lites  to  their  detestable  notions,  and  so  rob  the 
Almighty  of  the  honour  and  adoration  that  is 
due  to  him  from  his  creatures."  l 

Now  and  then  a  casual  sentence  opens  a  tiny 
chink  through  the  shutters  that  close  so  tightly 
round  that  little  family  circle.  "  When  you 
come  home,"  his  father  reminds  James,  "  don't 
forget  to  bring  me  Bishop  Patrick's  Devout 
Christian,  a  book  you  doubtless  well  remember, 
as  it  contains  the  family  prayers  we  always 
use."  2  "I  desire  you,"  he  says  a  few  months 
later,  "to  make  me  a  present  ...  of  a  box 
with  five  or  six  groce  of  neat  long  pipes,  but 
not  very  long  and  weighty,  and  to  your  mother 
an  oval  tortoise  shell  snuff  box,  with  a  joint  to 
the  lid,  the  length  of  the  box  not  exceeding  six 

of  the  New  York  Senate,  and  a  physician  of  distinction  in  New 
York. 

1  To  James  Jay,  December  7,  1751,  Letter  Book  of  Peter 
Jay,  iii. 

2  September  2,  1754. 


4  JOHN  JAY. 

inches."  l  One  wonders  whether  James,  when 
he  returned  after  many  years,  did  remember 
that  snuff  box  so  minutely  described,  and 
whether  it  was  the  recollection  of  those  "neat 
long  pipes  "  that  made  John  Jay  always  so  fond 
of  long  "  Church  wardens." 

Occasionally  politics  are  mentioned.  There 
is,  however,  nothing  but  loyal  enthusiasm  for  the 
success  of  the  troops  during  the  French  War, 
honest  regard  for  the  successive  governors,  and 
regret  for  their  mistakes  and  mischances,  espe- 
cially for  the  fate  of  Sir  Danvers  Osborne,  "  our 
late  new  Governor,"  who  "  very  unhappily  com- 
mitted a  violence  upon  himself,  and  was  found  in 
a  melancholy  situation  fastened  with  his  hand- 
kerchief." 2  But  from  the  date  of  the  Stamp 
Act  and  the  measures  restrictive  of  trade,  that 
were  passed  simultaneously  with  its  repeal,  the 
tone  gradually  changed.  "  Our  colonists  cannot 
digest  the  hard  measure  they  are  dealt  with  in 
Parliament  at  home,  when  at  the  same  time 
they  think  the  sugar  islands  are  greatly  in- 
dulg'd  to  their  prejudice.  .  .  .  The  political 
views  of  the  great,  in  measures  in  disfavour  of 
the  Colonyes,  are  to  me  impenetrable ;  they  may, 
for  aught  I  can  conceive,  tend  to  very  satisfactory 
ends,  but  they  are  considered  here  by  the  most 

1  November  26,  1754. 

2  To  David  Peloquin,  October  24,  1753. 


YOUTH.  5 

judicious  in  a  very  different  light,  as  the  un- 
happy occasion  of  making  very  bad  impressions 
on  the  minds  of  the  people,  and  the  laying  a 
foundation  for  much  trouble,  that  will  sooner  or 
later  be  the  inevitable  consequence  of  too  harsh 
usage.  In  my  situation  in  life,  the  measures 
complained  of  can  very  inconsiderably  affect 
me,  and  thus  far  they  give  me  no  concern,  but 
nevertheless  I  can't  help  having  a  feeling  for 
the  great  numbers  who  are  likely  to  suffer  by 
them."  1  The  hard  times  that  followed  are 
noticed  briefly :  "  The  reasonableness  of  a  gen- 
eral complaint  of  the  difficult  times  in  these 
Colonyes  by  the  great  restrictions  lay'd  on  trade, 
etc.,  begins  to  manifest  itself  by  frequent  fail- 
ures, and  by  a  shocking  general  bad  pay  among 
the  people ;  "  2  and  as  the  year  advances  to  its 
close,  the  language  becomes  stronger,  and  the 
keen-eyed  merchant  begins  to  see  pretty  clearly 
the  meaning  of  what  is  taking  place.  "  The 
general  and  spirited  resentment  that  prevails  in 
the  Colonyes,"  he  writes  on  November  25, 1765, 
"  gives  reason  to  expect  that  the  enforcing  the 
Stamp  Act  will  be  opposed  at  all  events,  and 
then  England  as  well  as  the  Colonyes  may  both 
have  reason  to  curse  the  first  promoters  of  it, 
who  by  this  impolitick  act  have  effectually 

1  To  David  Peloquin,  May  7,  1765. 

2  To  same,  June  4,  1765. 


6  JOHN  JAY. 

united  the  several  Colonyes  into  the  strongest 
tyes  of  mutual  interest  and  friendship,  which 
political  measures  of  former  Ministrys,  we  al- 
ways thought,  tended  to  prevent."  l 

Peter  Jay,  then,  was  a  sound  Whig  from  the 
beginning,  and  his  son  naturally  took  the  same 
independent  stand.  When  the  final  appeal 
to  arms  came,  Peter  Jay  remained  true  to  his 
Whig  principles,  though  no  extremist.  "  God 
grant,"  he  wrote  to  John,  in  the  spring  of  1776, 
"  that  all  attempts  of  the  ministerial  troops  may 
be  frustrated,  and  be  the  means  of  a  happy 
reconciliation," 2  a  curiously  illogical  wish,  but 
one  that  reflected  closely  the  Whig  popular 
opinion  of  a  few  months  earlier,  and  which  was, 
even  then,  the  wish  of  both  father  and  son,  and 
of  a  majority  of  the  Congress. 

One  letter  more  may  be  quoted,  full  of  char- 
acter, and  of  character  that  did  not  die  with 
the  writer.  It  was  written  in  1771,  to  his  son 
John,  and  is  about  a  dispute  with  a  neighbor,  in 
itself  unimportant :  — 

"  DEAR  JOHNNY,  —  Your  brother  tells  me  Mr. 
Bayard  and  you  have  agreed  about  the  road.  The 
settlement  of  our  lott  never  was  an  object  to  me,  and 
had  that  gentleman  condescended  to  ask  me  for  a 
road  as  a  matter  of  favour  he  should  have  had  it. 

1  To  David  Peloquin. 

2  April  18,  1776,  Jay  MSS. 


YOUTH.  1 

His  attempt  to  draw  me  into  the  measure  by  regard 
to  my  own  interest,  was  a  little  piece  of  art  which  I 
was  determined  should  not  succeed.  .  .  .  Design  is 
not  his  talent,  he  had  better  act  with  candor  and 
openness.  His  threats  of  an  Act  of  Assembly  and  an 
Application  to  the  Corporation,  were  better  calcu- 
lated to  excite  ridicule  than  fear.  I  have  nothing  to 
ask  or  fear  from  any  man,  and  will  not  be  compelled 
into  measures.  The  truth  of  his  former  pretences 
appears  now  from  his  consenting  to  pay  so  dearly  for 
a  road  ;  tell  him  he  may  have  his  land  and  a  road 
too."  l 

Piety,  independence,  and  a  keen  sense  of  jus- 
tice were  natural  birthrights  in  the  Jay  family  ; 
to  these  several  generations  of  successful  busi- 
ness men  had  added  the  more  worldly  virtues 
of  prudence  and  perseverance,  while  from  his 
father  John  Jay  seems  to  have  inherited  a  firm- 
ness of  character  which,  in  excess,  would  have 
been  obstinacy,  and  a  strength  of  feeling  seldom 
suspected  because  united  with  unusual  self-con- 
trol. It  is  also  noticeable  that  of  Jay's  great 
grandparents  not  one  was  English,  three  were 
French  and  five  Dutch,  so  that  he  was  one  of 
the  few  men  of  the  Revolution  who  could  say, 
as  he  did  in  1796,  "not  being  of  British  de- 
scent, I  cannot  be  influenced  by  that  tendency 
towards  their  national  character,  nor  that  par- 
1  To  John  Jay,  1771,  Jay  MSS. 


8  JOHN  JAY. 

tiality  for  it,  which  might  otherwise  be  supposed 
to  be  not  unnatural."  This  fact  in  itself,  com- 
bined with  the  hatred  of  interference  traditional 
among  merchants,  may  have  had  no  little  influ- 
ence in  making  John  Jay  a  leader  in  the  Amer- 
ican Revolution  without  his  ceasing  to  be,  or 
rather  because  he  was,  a  conservative. 

The  year  of  his  birth  he  was  taken  to  Rye, 
and  there  his  early  childhood  was  passed  in  the 
old  Jay  house,  which  at  that  time  was  "  a  long 
low  building,  but  one  room  deep,"  extended,  as 
the  family  increased,  by  some  eighty  feet  in 
length.1  After  surviving  an  attack  of  sore 
throat,  of  which  a  younger  sister  died,  and  es- 
caping the  dreaded  smallpox  that  left  his  brother 
Peter  and  his  sister  Nancy  totally  blind,  he  was 
taught  by  his  mother  "  the  rudiments  of  Eng- 
lish, and  the  Latin  grammar."  "  Johnny  is  of 
a  very  grave  disposition  and  takes  to  learning 
exceedingly  well,"  wrote  his  father,  when  the 
boy  was  nearly  seven  years  old ;  *'  he  will  be 
soon  fit  to  go  to  a  grammar  school ;  "  2  and  to  a 
grammar  school  he  accordingly  went  the  next 
year.  "  My  Johnny  gives  me  a  very  pleasing 
prospect,"  wrote  Mr.  Jay  again  in  the  autumn  ; 
"  he  seems  to  be  endowed  with  a  very  good  ca- 
pacity, is  very  reserved  and  quite  of  his  brother 

1  Scharf,  Hist,  of  Westchester  Co.,  ii.  672. 

2  To  James  Jay,  July  3,  1752. 


YOUTH.  9 

James's  disposition  for  books." l  The  school 
was  kept  by  the  Rev.  Peter  Stoope,  the  pastor  of 
the  French  Huguenot  Church,  then  lately  joined 
to  the  Episcopal  Communion,  at  New  Rochelle. 
He  was  by  birth  a  Swiss,  an  eccentric  man,  very 
absent-minded  and  wholly  devoted  to  mathe- 
matics, so  that  the  parsonage  was  allowed  to  fall 
into  decay,  and  the  boys  were  half-starved  under 
the  management  of  his  wife,  "  who  was  as  pe- 
nurious as  he  was  careless."  To  keep  the  snow 
off  his  bed  in  winter,  John  used  to  stuff  the 
broken  panes  of  his  window  with  bits  of  wood. 
But  the  plain  food  agreed  with  him,  his  health 
was  excellent,  and  he  used  to  recall  afterwards 
the  pleasure  he  had  in  the  woods  picking  nuts, 
which  "he  carried  home  in  his  stockings." 
French  was  spoken  generally  at  the  parsonage 
and  by  the  people  of  the  village,  who  were,  as 
its  name  suggests,  chiefly  descendants  of  French 
refugees  ;  thus  he  easily  and  early  learned  the 
language  that  was  to  prove  so  useful  to  him. 
At  New  Rochelle  he  stayed  for  three  years, 
when  he  was  taken  home  to  Rye,  and  prepared 
for  college  by  a  tutor,  Mr.  George  Murray. 

Jay  entered  King's  (now  Columbia)  College, 

in  1760,  when  he  was  but  a  little  over  fourteen 

years  old.    For  admission  he  was  required  to  read 

"  the  first  three  of  Tully's  orations,  and  the  six 

1  To  Messrs.  D.  &  L.  Peloquin,  Oct.  24,  1753. 


10  JOHN  JAY. 

first  books  of  Virgil's  u^Eneids  into  English,  and 
the  ten  first  chapters  of  St.  John's  Gospel  into 
Latin,"  to  be  well  versed  in  Latin  grammar, 
and  to  be  "  expert  in  Arithmetick  as  far  as  Re- 
duction." At  that  time  the  college  was  under 
its  first  president,  the  learned  and  pious  Dr. 
Samuel  Johnson,  an  old  friend  of  Mr.  Peter 
Jay,  whose  eldest  son  Augustus  had  studied 
reading  and  writing  at  the  doctor's  parsonage 
at  Stratford.  Dr.  Johnson  was  a  gentle,  studi- 
ous man,  who  had  been  one  of  the  first  gradu- 
ates of  Yale  College  to  desert  Congregational- 
ism for  the  Church  of  England.  Single-handed 
at  first,  then  with  one  and  afterwards  two  assist- 
ants, he  instructed  the  few  students  of  King's 
College,  and  was  just  gaining  some  success,  when 
he  resigned  on  the  death  of  his  wife  of  the 
smallpox,  which  for  some  years  had  been  epi- 
demic in  New  York,  and  for  fear  of  which  he 
scarcely  ever  ventured  out  of  doors.1  Young 
Jay  early  won  his  regard,  and  on  Dr.  Johnson's 
resignation  in  1763,  he  learned  from  his  father 
that  the  doctor  wished  to  hear  from  him.  "  I 
would  have  you  gratify  him  with  a  letter,  which 
he  has  a  right  to  expect  from  you,  and,  although 
I  believe  things  go  well  in  the  college  now," 
Mr.  Jav  suggested  with  characteristic  caution, 
"yet  I  would  not  have  you  write  more  than 

1  Baird,  Life  of  Dr.  Samuel  Johnson. 


YOUTH.  11 

may  be  communicated  out  of  college."  l  The 
boy  wrote  accordingly,  and  the  late  president 
answered  promptly,  incidentally  showing  how 
early,  with  its  unfamiliar  strains  of  wild  ro- 
mance, McPherson's  bombastic  Ossian  charmed 
the  fancy  even  in  America :  "  I  gave  Brooks  a 
much  better  and  more  correct  copy  of  what  I 
had  added  to  Ossian's  Address  to  the  Sun  than 
what  you  had  before,  from  which  I  wish  you 
and  all  of  them  would  exactly  transcribe  for  the 
future."2 

Of  Jay's  college  life  little  is  known.  During 
the  first  two  years  he  lodged  at  the  house  of 
Lawrence  Romer,  a  painter,  at  "  the  corner  of 
Verlettenburgh  Hill  and  Broadway,"  and  the 
last  two  years  he  had  rooms  in  the  college. 
He  set  himself  at  once,  of  his  own  accord,  to 
curing  certain  defects  of  utterance  and  rapid 
reading,  and  he  made  an  enthusiastic  study  of 
English  composition,  a  study  that  bore  fruit  in 
the  graceful  and  easy,  but  at  the  same  time 
often  laconic  style  for  which  he  was  noted,  and 
which  in  the  first  Continental  Congress  at  once 
placed  him  in  "  the  little  aristocracy  of  talents 
and  letters "  with  William  Livingston  and 
Dickinson.3  "  My  son  John  has  now  been  two 

1  August,  1763,  Jay  MSS. 

2  From  Rev.  Dr.  S.  Johnson,  Oct.  27,  1763,  Jay  MSS. 

3  John  Adams's  Works,  x.  79. 


12  JOHN  JAY. 

years  at  college,"  wrote  Mr.  Jay,  in  1765, 
"  where  he  prosecutes  his  studyes  to  satisfac- 
tion. He  is  indued  with  very  good  natural  parts, 
and  is  bent  upon  a  learned  profession.  I  be- 
lieve it  will  be  the  law." l  In  his  last  year  at 
college,  Jay,  then  "  a  youth  remarkably  sedate 
and  well-disposed  "  2  as  his  father  called  him,  de- 
termined on  the  law  as  his  profession,  and  is 
said  to  have  begun  his  preparation  for  it  by 
carefully  reading  through  Grotius  "  De  Jure 
Belli  et  Pacis,"  and  its  discussion  of  inter- 
national law  and  so-called  natural  rights  may 
have  seemed  to  have  a  bearing  on  the  perplex- 
ing and  pressing  problems  of  the  day.  His  de- 
cision to  study  law  was  apparently  the  result  of 
thought  and  deliberation,  as  Mr.  Jay  wrote  to 
him  on  hearing  of  it:  "Your  observations  on 
the  study  of  the  law  I  believe  are  very  just,  and 
as  it 's  your  inclination  to  be  of  that  profession, 
I  hope  you  '11  closely  attend  to  it,  with  a  firm 
resolution  that  no  difficulties  in  prosecuting 
that  study  shall  discourage  you  from  applying 
very  close  to  it,  and,  if  possible,  from  taking  a 
delight  in  it."3 

In  1763,  Dr.  Johnson  was  succeeded  as  pres- 
ident  by   Dr.    Myles   Cooper,    "a   wit   and    a 

1  John  Adams's  Works,  April  14,  1763. 

2  To  David  Peloquin,  Letter  Book,  May  16,  1763. 

3  August  23,  1763,  Jay  MSS. 


YOUTH.  13 

scholar,"  said  Verplanck,  "whose  learning  and 
accomplishments  gave  him  personal  popularity 
and  respect  with  his  pupils,  and  of  course  added 
authority  to  his  opinions,  and  those  were  the 
opinions  and  prejudices  of  the  high-toned  Eng- 
lish University  Tory  of  the  last  century." l 
Twelve  years  later,  to  escape  a  mob,  this  good 
gentleman  was  forced  to  leap  over  the  college 
fence  with  an  undignified  precipitation  little  be- 
fitting a  poet  and  a  Fellow  of  Oxford,  and  he 
sailed  forthwith  for  England ;  but  at  this  ear- 
lier time  he  was  not  unpopular,  and  he  was  al- 
ways spoken  of  respectfully  by  Jay,  who  might 
naturalJy  have  resented  what  he  then  deemed 
a  most  unjust  punishment  in  the  following 
matter.  One  day  a  number  of  students  in  the 
College  Hall  began  to  break  the  table,  —  such 
at  least  is  the  traditional  description  of  their 
nefarious  enterprise.  The  president  heard  the 
noise,  went  in,  and  asked  one  student  after  an- 
other :  "  Did  you  break  the  table  ?  "  "  Do  you 
know  who  did  ?  "  All  answered  "  No,"  until  he 
came  to  Jay,  who  was  the  last  but  one.  To  the 
first  question  Jay  answered  like  the  others,  to 
the  second  question :  "  Yes,  sir."  "  Who  was 
it?"  asked  Dr.  Cooper.  •  "  I  do  not  choose  to  tell 
you,  sir,"  was  the  sturdy  reply;  and  the  next 

1  Gulian  Verplanck,  Address  before  College  Societies,  August 
2,  1830. 


14  JOHN  JAY. 

and  last  boy  answered  as  Jay  did.  These  two 
were  called  before  the  professors,  when  Jay  ar- 
gued ingeniously  and  reasonably  enough  that, 
as  information  against  fellow-students  was  not 
required  by  the  College  Statutes,  they  were  not 
technically  guilty  of  disobedience  in  not  inform- 
ing ;  but  the  professors  were  unconvinced,  and 
Jay  was  rusticated  only  a  short  time  before  he 
was  to  graduate.  His  term  of  suspension  over, 
he  returned  to  college,  and  at  the  Commence- 
ment held  in  May,  1764,  in  the  presence  of 
General  Gage,  his  majesty's  council,  and  other 
notables,  delivered  a  dissertation  on  the  bless- 
ings of  peace,  and  received  his  bachelor's  degree. 
Two  weeks  after  leaving  college,  Jay  en- 
tered, as  a  student,  the  office  of  Benjamin  Kis- 
sam,  a  barrister  "  eminent  in  the  profession,"  1 
binding  himself  an  apprentice,  on  the  payment 
of  ,£200,  to  serve  for  five  years,  with  liberty  to 
apply  the  last  two  years  to  the  study  of  the  law, 
and  to  visit  the  sessions  with  only  occasional 
attendance  then  at  the  office.  This  arrange- 
ment was  a  happy  ending  of  much  anxiety  on 
the  part  of  Mr.  Peter  Jay,  for  the  lawyers  of 
New  York  had  a  few  years  before  made  an 
agreement  to  take  no  one  as  clerk  who  pro- 
posed to  enter  the  profession,  and  a  new  and 
more  liberal  agreement  u  under  such  restric- 
1  Letter  Book,  May  15,  1764. 


YOUTH.  15 

tions,"  however,  "  as  will  greatly  impede  the 
lower  class  of  the  people  from  creeping  in," 1 
was  made  only  in  time  to  prevent  Jay  from 
starting  for  England  to  get  a  professional 
education  there. 

"  The  office  duties  of  clerks  at  that  period," 
according  to  Peter  Van  Schaack,  who  three 
years  later  was  studying  under  William  Smith 
of  the  same  bar,  "  were  immensely  laborious ; 
everything  was  written,  and  the  drudgery  of 
copying  was  oppressive.  Printed  blank  forms, 
which  are  now  used  by  the  profession  with  so 
much  economy  of  time  and  labor,  were  then  un- 
known. Even  the  argument  of  questions  of 
law  before  the  Supreme  Court  was  conducted 
in  writing."  2  The  law  books  of  the  time  were 
the  ponderous  tomes  of  reports  and  digests  that 
preceded  Blackstone's  Commentaries,  which  did 
not  reach  America  till  the  third  year  of  Jay's 
apprenticeship.  In  this  drudgery  Jay  had  as 
companion  for  a  while  Lindley  Murray,  after- 
wards the  famous  grammarian,  who  was  soon 
struck  by  the  unusual  qualities  of  his  fellow- 
student,  qualities  which,  as  he  then  noted  them, 
were  characteristic  of  Jay  throughout  a  long 
life.  "He  was  remarkable,"  said  Murray, 

1  Letter  Book,  May  15,  1764. 

-  Life  of  Peter  Van  Schaack,  by  Henry  Van  Schaack,  pp. 
6,7. 


16  JOHN  JAY. 

"for  strong  reasoning  powers,  comprehensive 
views,  indefatigable  application,  and  uncommon 
firmness  of  mind."  1  With  Mr.  Kissam  Jay, 
though  very  young  and  only  a  clerk,  was  before 
long  on  terms  of  intimacy.  Many  years  after- 
wards, he  had  the  pleasure  of  introducing  Kis- 
sam's  son  to  John  Adams,  with  the  remark,  that 
the  father  was  "one  of  the  best  men  I  have 
ever  known,  as  well  as  one  of  the  best  friends 
I  have  ever  had."  2 

In  the  sixties  the  must  of  the  Revolution  was 
already  fermenting,  but  politics  were  apparently 
ignored  by  both  master  and  clerk  except  so  far 
as  concerned  their  legal  business.  In  April, 
1766,  Mr.  Kissam  proposes  going  "  on  a  jaunt " 
to  Philadelphia,  if  the  news  of  the  repeal  of  the 
Stamp  Act  does  not  arrive  in  the  mean  time; 
for  as,  he  writes,  "  on  the  Repeal  of  the  Stamp 
Act  we  shall  doubtless  have  a  luxuriant  harvest 
of  law,  I  would  not  willingly,  after  the  long  fam- 
ine we  have  had,  miss  reaping  my  part  of  the 
harvest.  ...  As  soon  as  it  reaches  you,  I  beg 
you  '11  come  down,  and  be  ready  to  receive  all 
business  that  offers." 3  Kissam,  while  absent, 
wrote  to  ask  about  the  conduct  of  the  office,  and 
Jay  replied  in  a  letter  that  was,  as  he  expressed 

1  Autobiography  of  Lindley  Murray. 

2  To  John  Adams,  Feb.  16,  1788,  Jay  MSS. 
8  To  John  Jay,  April  25,  1766,  Jay  MSS. 


YOUTH.  17 

it,  "  free  enough  in  all  conscience  :  "  "  If  by 
wanting  to  know  how  matters  go  on  in  the 
office,  you  intend  I  shall  tell  you  how  often 
your  clerks  go  into  it,  give  me  leave  to  remind 
you  of  the  old  law  maxim,  that  a  man's  own 
evidence  is  not  to  be  admitted  in  his  own  cause. 
Why  ?  Because  't  is  ten  to  one  he  does  violence 
to  his  conscience.  If  I  should  tell  you  that  I 
am  all  the  day  in  your  office,  and  as  attentive 
to  your  interest  as  I  would  be  to  my  own,  I 
suspect  you  would  think  it  such  an  impeach- 
ment of  my  modesty  as  would  not  operate  very 
powerfully  in  favor  of  my  veracity.  And  if, 
on  the  other  hand,  I  should  tell  you  that  I 
make  hay  while  the  sun  shines,  and  say  unto 
my  soul,  '  Soul,  take  thy  rest,  thy  lord  is 
journeying  in  a  far  country,'  I  should  be  much 
mistaken  if  you  did  not  think  that  the  confes- 
sion looked  too  honest  to  be  true."  l  The  fun 
of  a  lawyer  of  twenty-one  in  1766  does  not,  per- 
haps, bear  quoting,  but  it  shows  the  familiar, 
pleasant  relationship  he  had  already  established 
with  his  "  master,"  and  the  boyish  gayety  that 
was  so  soon,  perforce,  concealed  by  an  acquired 
or  natural  gravity.  It  was  about  this  time,  too, 
that  Jay  by  a  diplomatic,  though  not  insincere, 
reply  got  his  father's  leave  to  keep  a  horse. 
"John,  why  do  you  want  a  horse?"  "That 

1  Jay,  Life  of  John  Jay,  i.  18. 


18  JOHN  JAY. 

I  may  have  the  means,  sir,  of  visiting  you  fre- 
quently." The  fact  was  that  then,  as  in  after 
years,  Jay  suffered  from  ill  health,  especially 
from  dyspepsia,  and  found  his  best  medicine  in 
regular  exercise. 

In  1768  he  was  admitted  to  the  bar,  and  be- 
came almost  immediately  successful,  forming  at 
first  a  temporary  partnership  with  Robert  R. 
Livingston,  afterwards  Chancellor  of  the  State, 
and  Secretary  for  Foreign  Affairs.  Benjamin 
Kissam,  when  unable  to  attend  to  his  own  busi- 
ness, would  often  ask  Jay  to  act  for  him,  and  a 
letter  of  his  shows  the  nature  of  the  cases :  "  One 
is  about  a  horse  race,  in  which  I  suppose  there 
is  some  cheat ;  another  is  about  an  eloped  wife  ; 
another  of  them  also  appertains  unto  horse 
flesh.  .  .  .  There  is  also  one  writ  of  Inquiry." 

The  practice  of  a  country  lawyer  to-day  could 
scarcely  be  less  interesting.  Indeed,  before  the 
Revolution,  so  far  as  can  be  gathered,  the  chief 
law  business,  even  in  New  York,  consisted  in 
suing  out  writs  of  ejectment,  and  in  collecting 
debts  due  to  English  merchants.  It  was  seldom 
that  a  case  arose  like  that  of  Zwengler,  involving- 
principles  of  constitutional  law,  and  establishing 
the  reputation  of  the  victorious  counsel.  One 
cause  only  of  some  consequence  is  mentioned,  in 
which  Jay  was  engaged,  that  of  a  contested  elec- 
tion in  Westchester  County,  in  which  the  right 


YOUTH.  19 

of  suffrage  was  discussed,  and  questions  of  evi- 
dence of  more  than  usual  intricacy  arose.  On 
this  occasion  Jay  was  opposed  by  his  friend  Gou- 
verneur  Morris.  In  1770  Jay  speaks  of  going  to 
Fairfield  to  try  two  causes  ; l  and  in  1774  he  is 
addressing  a  jury  at  Albany.  His  practice,  then, 
was  varied,  though  he  was  engaged  in  no  great 
cases,  and  was  at  no  time  noted  for  brilliant  or 
"  magnetic  "  oratory.  In  after  years  his  "  quiet, 
limpid  style,  without  gesture,"  attracted  the  at- 
tention of  the  younger  Hamilton  during  the 
great  debates  on  the  ratification  of  the  Consti- 
tution in  the  New  York  Convention,  and,  as 
a  young  lawyer,  he  must  have  been  unusually 
clear-headed  and  tactful.  "  All  the  causes  you 
have  hitherto  tried,"  wrote  Kissam  in  1769, 
"  have  been  by  a  kind  of  inspiration."  2  These 
two  still  continued  great  friends,  though  some- 
times engaged  on  opposite  sides.  On  one  such 
occasion  Kissam,  in  a  moment  of  embarrassment, 
complained  that  he  had  brought  up  a  bird  to 
peck  out  his  own  eyes.  "  Oh,  no,"  retorted  Jay, 
"not  to  peck  out  but  to  open  your  eyes." 

In  November,  1770,  a  number  of  lawyers  in 
New  York  formed  "  The  Moot,"  a  club  that  met 
the  first  Friday  of  every  month  for  the  discus- 
sion of  disputed  points  of  law.  Jay  was  one  of 

1  To  Dr.  Kissam,  March  1,  1770,  Jay  MSS. 

2  From  Benjamin  Kissam,  Nov.  6,  1769,  Jay  MSS. 


20  JOHN  JAY. 

the  younger  members,  together  with  his  college 
friends,  Egbert  Benson,  in  due  time  Judge  of 
the  New  York  Supreme  Court ;  Robert  R.  Liv- 
ingston, Jr.  ;  James  Duane,  Jay's  colleague  in 
the  Continental    Congress,   and  first  mayor  of 
New  York   after  the    Revolution ;    Gouverneur 
Morris,  as  yet  without  that  wooden  leg  which  he 
brandished  with  such  happy  effect  in  the  face  of 
a  Paris  mob;   and   Peter  Van  Schaack,  whom 
Jay  was  to  exile  from  the  State,  but  who  loved 
him  to  the  end,  and  wrote  an  epitaph  on  him  ; 
while  among   the  older  lawyers,  who  attended 
occasionally,  were  William  Smith,  who  later  be- 
came Chief  Justice  of  Canada,  after  having  been 
confined  in  Livingston  Manor,  and  banished  as 
a  Tory  sympathizer ;  Samuel  Jones,  the  Chief 
Justice,    whose   office   was   to   be   the   training 
school  of  De  Witt  Clinton ;  John  Morin  Scott, 
the  popular  orator  of  the  Liberty  Boys,  lawyer, 
patriot,  and  general  ;  William  Livingston,  and 
Benjamin  Kissam.     The  decision  of  the  club  on 
a  matter  of  practice  is  said  to  have  been  followed 
by  the   Superior  Court ;  and  its   sessions  must 
have  been  invaluable  to  the  younger  members. 
Party  politics  of  the  province  were  a  forbidden 
topic  at  the  meetings,  which  were  long  remem- 
bered with  delight ;  "  a  recollection,"  wrote  Van 
Schaack  to  Jay  before  many  years  had  passed, 
"  of  those  happy  scenes,  of  our  clubs,  our  moots, 


YOUTH.  21 

and  our  Broadway  evenings,  fills  me  with  pleas- 
ing melancholy  reflections, — fuimus  Troes^fuit 
Ilium:' ! 

In  the  mean  time  the  young  lawyer's  practice 
steadily  increased,  and  in  the  autumn  of  1771 
he  was  able  to  write  to  Dr.  Samuel  Kissam,  a 
college  friend  in  business  at  Surinam :  "  With 
respect  to  business  I  am  as  well  circumstanced 
as  I  have  a  right  to  expect ;  my  old  friends  con- 
tribute much  to  my  happiness,  and  upon  the 
whole  I  have  reason  to  be  satisfied  with  my  share 
of  the  attention  of  Providence." 2  Not  many 
lawyers  of  twenty-six  can  say  so  much  to-day. 
Two  years  later  his  official  or  public  life  began 
with  his  appointment,  February  17,  1773,  as 
Secretary  to  the  Royal  Commission,  to  determine 
the  disputed  boundary  between  New  York  and 
Connecticut.  The  following  year,  April  28, 
1774,  at  patriotically  named  "Liberty  Hall," 
Elizabeth,  New  Jersey,  he  married  "  the  beauti- 
ful Sarah  Livingston,"  the  youngest  daughter  of 
William  Livingston,  soon  to  be  the  famous  rev- 
olutionary governor  of  New  Jersey,  and  already 
well  known  for  countless  literary  and  political 
poems,  letters,  and  essays.  In  the  notices  of  the 
wedding,  Jay,  young  as  he  was,  could  be  de- 
scribed as  "  an  eminent  barrister,"  3  —  the  same 

1  Life  of  Peter  Van  Schaack,  p.  100. 

2  August  27,  1771,  Jay  MSS. 

8  New  York  Gazette,  May  9,  1774. 


22  JOHN  JAY. 

phrase  that  was  applied  to  him  a  month  or  two 
later  by  Lieutenant  Governor  Golden. 

With  this  spring  closes  the  first  third  of  Jay's 
life,  of  which,  as  curiously  happened,  the  second 
third  of  twenty-eight  years  was  spent  wholly  in 
the  public  service,  and  the  last  third  wholly  in 
retirement.  So  far  as  can  be  gathered  from  the 
meagre  records  extant,  his  twenty -ninth  year 
found  him  a  studious,  quiet  lawyer,  devoted  to 
his  profession  and  but  little  excited  by  the  poli- 
tics of  the  day.  As  a  boy  he  was  not  precocious ; 
no  brilliant-winged  creature  like  Hamilton,  but 
a  lad  "remarkably  sedate."  His  college  life 
won  him  no  sudden  reputation  like  that  of  so 
many  English  statesmen  from  Pitt  to  Gladstone, 
but  it  did  win  him  the  love  and  esteem  of  many 
friends  that  continued  till  his  death.  Carefully 
and  well  nurtured,  in  the  comfortable  society  of 
honorable  relations  and  friends,  occupied  in  the 
profession  of  his  choice,  successful  in  the  love 
of  his  heart,  he  was  now  a  slender,  graceful  man, 
with  refined,  handsome,  serious  face;  whose 
slowly  matured  character  had  ripened  to  well- 
balanced  wisdom  unconsciously  and  apparently 
unsuspected.  By  family  traditions  he  was  inde- 
pendent of  England,  and  a  Whig  ;  and  now  by 
marriage  he  was  connected  with  the  great  Whig 
family  of  Livingston,  which  had  for  generations 
contested  the  province  with  the  Tory  De  Lan- 
ceys. 


CHAPTER  II. 

CONSERVATIVE   WHIG   LEADER. 

1774-1776. 

"  THROUGHOUT  America  the  constitutions 
favored  individuality.  Under  the  careless  rule 
of  Great  Britain,  habits  of  personal  liberty  had 
taken  root,  which  showed  themselves  in  the 
tenacity  wherewith  the  people  clung  to  their 
habits  of  self-government ;  and  so  long  as  those 
usages  were  respected,  under  which  they  had 
always  lived,  and  which  they  believed  to  be  as 
well  established  as  Magna  Charta,  there  were 
not  in  all  the  King's  dominions  more  loj^al  sub- 
jects than  Washington,  Jefferson,  and  Jay." l  In 
1773,  Jay  was  as  loyal  as  any  man  "  in  all  the 
King's  dominions ; "  in  1776,  as  chairman  of  a 
secret  committee,  he  was  punishing  with  impris- 
onment and  exile  many  men  whose  only  crime 
was  retaining  the  opinions  he  himself  had  held 
three  years  before.  Yet,  in  the  meanwhile,  Jay's 
principles  of  conduct  and  his  mental  attitude 

1  Brooks  Adams,   The  Emancipation  of  Massachusetts,  pp. 
316, 317. 


24  JOHN  JAY. 

were  unchanged.  How  such  could  be  the  case 
is  worth  inquiry  ;  especially  as  Jay,  rather  than 
impulsive  men  like  Adams,  or  quick-witted  men 
like  Hamilton,  was  typical  of  the  generation  that 
fought  the  Revolution. 

In  1773  the  tax  on  tea  was  imposed.  On 
October  25th  the  Mohawks  of  New  York,  a 
band  of  the  Sons  of  Liberty,  were  ordered  by 
their  old  leaders  to  be  on  the  watch  for  the  tea 
ships ;  *  and  it  was  merely  the  chances  of  time 
and  tide  that  gave  the  opportunity  of  fame  first 
to  the  Mohawks  of  Boston.  December  15th, 
soon  after  the  Boston  tea  party,  there  was  re- 
vived the  old  organization  of  the  Sons  of  Lib- 
erty, which  had  first  been  formed  to  put  down 
the  Stamp  Act,  holding  together  after  the  repeal 
of  that  measure  to  oppose  such  acts  of  Parlia- 
ment as  the  Mutiny  Bill,  and  which,  as  late  as 
1770,  established  a  committee  to  enforce  non-im- 
portation.2 An  "  association  "  was  now  circulated 
for  signatures,  engaging  to  boycott,  "not  deal 
with,  or  employ,  or  have  any  connection  with  " 
any  persons  who  should  aid  in  landing,  or  "  sell- 
ing, or  buying  tea,  so  long  as  it  is  subject  to  a 
duty  by  Parliament ;  "  3  and  December  17th  a 
meeting  of  the  subscribers  was  held  and  a  com- 

1  Leake,  Life  of  John  Lamb,  p.  76. 

2  Ibid.,  pp.  2,  69. 

8  New  York  Journal,  Dec.  16,  1773. 


CONSERVATIVE   WHIG  LEADER.  25 

mittee  of  fifteen  chosen  as  a  Committee  of  Cor- 
respondence that  was  soon  known  as  the  Vigi- 
lance Committee.  Letters  also  were  exchanged 
between  the  speakers  of  many  of  the  houses  of 
assembly  in  the  different  provinces;  and  Jan- 
uary 20,  1774,  the  New  York  Assembly,  which 
had  been  out  of  touch  with  the  people  ever  since 
the  Stamp  Act  was  passed  in  the  year  after  its 
election,  appointed  their  Speaker,  with  twelve 
others,  a  standing  Committee  of  Correspondence 
and  Enquiry,  a  proof  that  the  interest  of  all 
classes  was  now  excited.  April  15th,  the  Nancy 
with  a  cargo  of  tea  arrived  off  Sandy  Hook, 
followed  shortly  by  the  London.  The  Commit- 
tee of  Vigilance  assembled,  and,  as  soon  as  Cap- 
tain Lockyier  of  the  Nancy  landed  in  spite  of 
their  warning,  escorted  him  to  a  pilot  boat  and 
set  him  on  board  again,  while  the  flag  flew  from 
the  Liberty  Pole,  and  cannon  thundered  from 
the  "  Fields."  April  23d,  the  Nancy  stood  out 
to  sea  without  landing  her  cargo,  and  with  her 
carried  Captain  Chambers  of  the  London^  from 
which  the  evening  before  eighteen  chests  of  tea 
had  been  emptied  into  the  sea  by  the  Liberty 
Boys.1 

The  bill  closing  the  port  of  Boston  was  en- 
acted March  31st,  and  a  copy  of  the  act  reached 
New  York  by  the  ship  Samson  on  the   12th. 
1  Leake,  Life  of  John  Lamb,  pp.  81-84. 


26  JOHN  JAY. 

Two  days  later  the  Committee  of  Vigilance 
wrote  to  the  Boston  Committee  recommending 
vigorous  measures  as  the  most  effectual,  and 
assuring  them  that  their  course  would  be  heart- 
ily supported  by  their  brethren  in  New  York.1 
So  rapid  had  been  the  march  of  events  that  not 
till  now  did  the  merchants  and  responsible  citi- 
zens of  New  York  take  alarm.  Without  their 
concurrence  or  even  knowledge  they  were  being 
rapidly  compromised  by  the  unauthorized  action 
of  an  irresponsible  committee,  composed  of  men 
who  for  the  most  part  were  noted  more  for  enthu- 
siasm than  judgment,  and  many  of  whom  had 
been  not  unconcerned  in  petty  riots  and  demon- 
strations condemned  by  the  better  part  of  the 
community.  The  one  weapon  in  which  the  Sons 
of  Liberty  trusted  was  "  Non-importation,"  a 
prohibition  of  trade  with  England,  and  this  was 
a  measure  which  injured  the  merchants  of  New 
York  more  than  any  others,  and  had  been  aban- 
doned in  1770  as  a  failure.  "  The  men  who  at 
that  time  called  themselves  the  Committee," 
wrote  Lieutenant  Governor  Colden  the  next 
month,  "  who  dictated  and  acted  in  the  name  of 
the  people,  were  many  of  them  of  the  lower 
ranks,  and  all  the  warmest  zealots  of  those 
called  the  Sons  of  Liberty.  The  more  consid- 
erable merchants  and  citizens  seldom  or  never 
1  Leake,  Life  of  John  Lamb,  p.  87. 


CONSERVATIVE   WHIG  LEADER.  27 

appeared  among  them.  .  .  .  The  principal 
inhabitants,  being  now  afraid  that  these  hot- 
headed men  might  now  run  the  city  into  dan- 
gerous measures,  appeared  in  a  considerable 
body  at  the  first  meeting  of  the  people  after  the 
Boston  Port  Act  was  published  here."  1  This 
meeting,  convoked  by  advertisement,  was  held 
May  16th,  at  the  house  of  Samuel  Francis,  "  to 
consult  on  the  measures  proper  to  be  pursued." 
It  was  proposed  to  nominate  a  new  committee 
to  supersede  the  Committee  of  Vigilance,  au- 
thorized to  represent  the  citizens.  A  committee 
of  fifty,  Jay  among  them,  instead  of  one  of 
twenty-five  as  at  first  suggested,  was  nominated 
"for  the  approbation  of  the  public,"  "to  cor- 
respond with  our  sister  colonies  on  all  matters 
of  moment."  Three  days  later  these  nomina- 
tions were  confirmed  by  a  public  meeting  held  at 
the  Coffee  House,  but  not  until  a  fifty-first  mem- 
ber was  added,  Francis  Lewis,  as  a  representa- 
tive of  the  radical  party  which  had  been  as  much 
as  possible  ignored.  The  chagrin  of  the  Sons 
of  Liberty  at  the  conservative  composition  of 
the  committee  was  intensified  by  the  exultation, 
unfounded  though  it  proved,  of  the  Tories.  "You 
may  rest  assured,"  wrote  Rivington,  the  editor 
of  the  Tory  newspaper,  to  Knox,  then  a  book- 
seller in  Boston,  and  afterwards  Secretary  for 
1  Am.  Archives,  4th  Series,  i.  372. 


28  JOHN  JAY.     ' 

War,  "  no  non-im-  nor  non-exportation  will  be 
agreed  upon,  either  here  or  at  Philadelphia. 
The  power  over  our  crowd  is  no  longer  in  the 
hands  of  Sears,  Lamb,  and  such  unimportant 
persons  who  have  for  six  years  past  been  the 
demagogues  of  a  very  turbulent  faction  in  this 
city ;  but  their  power  and  mischievous  capacity 
expired  instantly  upon  the  election  of  the  Com- 
mittee of  Fifty-one,  in  which  there  is  a  majority 
of  inflexibly  honest,  loyal,  and  prudent  citizens." 
At  the  Coffee  House  again,  on  May  23d,  the 
Committee  of  Fifty-one  met  and  organized ;  they 
repudiated  the  letter  to  Boston  from  the  Com- 
mittee of  Vigilance  as  unofficial ; 1  a  letter  from 
Philadelphia  was  read ;  Paul  Revere,  the  "  ex- 
press "  or  confidential  messenger  from  Boston, 
attended  with  a  letter  dated  May  13th,  request- 
ing concurrence  with  the  resolves  of  the  Boston 
town  meeting  of  that  day  ordering  non-importa- 
tion from  Great  Britain  and  discontinuance  of 
trade  with  the  West  India  Islands;  and  Mc- 
Dougall,  Low,  Duane,  and  Jay  were  appointed 
a  sub-committee,  to  report  the  same  evening  a 
draft  of  an  answer  to  this  last.  The  draft, 
as  reported,  is  believed  to  be  by  Jay.  It  urged 
that  "  a  Congress  of  Deputies  from  the  Colonies 
in  General  is  of  the  utmost  moment,"  to  form 
"  some  unanimous  resolutions  .  .  .  not  only  re- 
1  Leake,  Life  of  John  Lamb,  p.  88. 


CONSERVATIVE  WHIG  LEADER.  29 

specting  your  [Boston's]  deplorable  circum- 
stances, but  for  the  security  of  our  common 
rights ;  "  and  that  the  advisability  of  a  non-im- 
portation agreement  should  be  left  to  the  Con- 
gress. This  report  was  unanimously  agreed  to, 
a  copy  was  delivered  to  Paul  Eevere,  and  an- 
other copy  to  a  messenger  for  Philadelphia.1 
The  importance  of  this  letter  can  hardly  be  ex- 
aggerated, for  it  was  the  first  serious  authorita- 
tive suggestion  of  a  General  Congress  to  con- 
sider "  the  common  rights  "  of  the  colonies  in 
general.  The  people  of  Boston  in  the  indigna- 
tion of  the  moment  were  preoccupied  wholly 
with  their  private  local  wrongs,  for  which  they 
were  ready  to  involve  the  continent  in  a  war  of 
commercial  restrictions.  The  Sons  of  Liberty 
in  New  York  and  elsewhere  were  equally  in- 
capable of  any  broader  views.  The  resolutions 
about  the  same  date,  some  a  day  or  two  earlier, 
some  a  day  or  two  later,  of  meetings  in  Provi- 
dence and  Philadelphia,  and  of  the  Burgesses 
of  Virginia,  were  all  deficient  either  in  being 
unofficial  or  as  limiting  the  object  of  the  Con- 
gress to  the  quarrel  of  Boston.2  It  was  the 

1  New  York  Journal,  May 21,  1774.     In  Leake's  Life  of 
Lamb,  p.  88,  the  date  of  this  meeting  is  erroneously  given 
as  May  26. 

2  "  The  first,  or  one  of  the  first,  to  claim  that  the  particular 
grievances  of  Boston  were  not  the  only  ones  to  be  considered  — 
though  the  Committee  of  Philadelphia,  in  the  letter  forwarded 


30  JOHN  JAY. 

conservative  merchants  of  New  York  alone  who 
were  at  the  time  calm,  clear-headed,  and  far- 
sighted  enough  to  urge  the  postponement  of 
violent  measures,  which  would  then  almost  cer- 
tainly have  been  only  sporadic  and  abortive, 
to  the  discretion  of  a  Congress  concerned  with 
the  welfare  of  all.  The  advice  of  New  York 
was  followed  gradually  by  the  other  colonies, 
but  even  before  a  Continental  Congress  was  a 
certainty,  the  Committee  of  Fifty -one,  with 
singular  confidence,  resolved  that  delegates  to 
it  should  be  chosen,  and  called  a  meeting  for 
that  purpose  for  July  19th. 

Meantime  the  Committee  of  Vigilance  was 
dying  hard.  It  still  tried  to  enforce  the  Bos- 
ton resolutions,  by  a  system  of  espionage  and 
threats.  The  chairman  of  a  committee  of 
merchants  complained  to  the  Fifty-one  of  these 

with  this  to  Boston,  had  adopted  somewhat  the  same  tone  — 
and  the  first  to  propose  a  Convention  of  all  the  Colonies  to 
take  concerted  action  on  all  their  grievances  ;  for  the  recom- 
mendation of  the  town  of  Providence,  May  17,  only  requested 
their  delegates  in  the  approaching  General  Assembly  to  use 
their  efforts  to  that  end,  and  the  Committee  of  Philadelphia, 
May  21,  merely  mentioned  the  suggestion  without  urging  it." 
The  Committee  of  Correspondence  of  Connecticut  concurred 
with  the  New  York  recommendation,  June  4;  the  General 
Assembly  of  Rhode  Island,  June  15 ;  the  General  Court  of 
Massachusetts,  June  17,  and  Philadelphia  at  a  meeting  of  the 
citizens,  June  18.  Dawson,  Westchester  Co.  during  the  Revo- 
lution, p.  18. 


CONSERVATIVE  WHIG  LEADER.  31 

persons  inquiring  "  into  their  private  business," 
and  the  Fifty-one  promptly  denounced  them. 
This  was  more  than  Lamb,  the  leader  of  the 
old  committee,  could  stand.  In  the  words  of 
his  biographer :  "  Satisfied  of  the  intentions  of 
the  Fifty-one  to  paralyze  the  energies  of  the 
people,  .  .  .  they  resolved  to  frustrate  their 
designs,"1  and  by  an  unsigned  advertisement 
called  for  the  evening  of  July  6th  what  was 
afterwards  known  as  the  "  Great  meeting  in  the 
Fields,"  now  City  Hall  Park.  Alexander  Mc- 
Dougall  presided,  and  strong  resolutions  were 
passed  and  pledges  made  in  favor  of  non-impor- 
tation. These  proceedings  were  promptly  disa- 
vowed the  next  day  by  the  regular  committee 
as  "  evidently  calculated  ...  to  excite  ground- 
less .  .  .  suspicions,  ...  as  well  as  disunion 
among  our  fellow-citizens ; "  and  a  sub-com- 
mittee was  chosen  to  draw  resolutions.  Low, 
Lewis,  Moore,  Sears,  Remsen,  Shaw,  McDou- 
gall,  and  others  refusing  to  attend,  a  new  sub- 
committee was  appointed,  July  13th  :  Low,  Jay, 
Thurman,  Curtenius,  Moore,  Shaw,  and  Bache, 
who  reported  resolutions :  "  That  it  is  our  great- 
est Happiness  and  Glory  to  have  been  born 
British  Subjects,  and  that  we  wish  nothing 
more  ardently  than  to  .live  and  die  as  such  ; " 
that  "  the  Act  for  Blocking  up  the  port  of  Bos- 

1  Leake,  Life  of  Lamb,  p.  92. 


32  JOHN  JAY. 

ton  is  ...  subversive  of  every  idea  of  British 
Liberty ; "  and  that  it  should  be  left  to  the  pro- 
posed Congress  to  determine  the  question  of 
non-importation,  which  would  be  justified  only 
by  "dire  necessity."1 

The  resolutions  were  adopted,  and  Philip  Liv- 
ingston, John  Alsop,  Isaac  Low,  James  Duane, 
and  John  Jay  were  nominated  as  delegates  to 
be  submitted  to  the  public  meeting,  July  19th. 
The  people  met  accordingly  at  the  Coffee  House, 
and  after  a  stormy  debate  elected  the  commit- 
tee's candidates  in  spite  of  a  strong  effort  to 
substitute  for  Jay,  McDougall,  the  hero  of  the 
Liberty  Boys  since  his  imprisonment  in  1769 
for  libel  on  the  Tory  Assembly.  But  they  re- 
jected the  proposed  resolutions,  which  had  been 
violently  denounced  by  Lamb,  that  brave  but 
turbulent  spirit,  for  humility,  ambiguity,  incon- 
sistency, and  aversion  to  non-importation.  Jay, 
with  fourteen  others,  was  directed  to  draft 
amendments.  On  motion  of  Jay,  too,  a  commit- 
tee was  appointed  to  relieve  the  distress  of  Bos- 
ton. The  next  day  Livingston,  Alsop,  Low,  and 
Jay  refused  to  accept  their  election,  on  the 
grounds  that  the  meeting  was  not  representative, 
and  that  they  agreed  in  the  main  with  the  re- 
jected resolutions,  so  determined  were  they,  even 
in  such  quasi  -  revolutionary  proceedings,  that 
1  New  York  Journal,  July  14,  1774. 


CONSERVATIVE   WHIG  LEADER.  33 

nothing  should  be  done  except  decently  and  in 
order.  It  is  known  that  the  popular  party 
wished  to  have  the  nominations  referred  for 
approval  to  the  Committee  of  Mechanics,  a 
trade  organization  which  now,  like  every  other, 
began  to  take  part  in  politics,  and  which  pro- 
fessed to  represent,  and  to  some  extent  was  the 
sole  representative  of,  the  unenfranchised  and, 
as  ever  in  times  of  excitement  and  in  cities,  ex- 
tremely radical  masses  ;  while  the  majority  of 
the  Committee  of  Fifty -one  wished  the  nomi- 
nations submitted  to  the  Freeholders  and  Free- 
men, as  at  ordinary  elections.1  A  compromise 
was  happily  effected.  Polls  were  ordered  by 
the  committee  to  be  opened  July  28th  for  the 
election  of  delegates  in  each  ward  under  the 
superintendency  of  the  aldermen  and  members 
of  the  Committee  of  Fifty-one  and  of  the  Me- 
chanics' Committee.2  In  answer  to  letters  from 
the  latter  the  candidates  stated  that  they  be- 
lieved at  the  moment  in  the  propriety  of  non- 
importation, but  were  determined  to  hold  them- 
selves free  to  act,  if  elected,  as  should  seem 
best  in  the  Congress.  In  this  concession  the 
mechanics,  meeting  at  the  house  of  Mr.  Mar- 
iner, acquiesced.3  At  the  election  Jay  and  his 
colleagues  received  a  unanimous  vote. 

1  Leake,  Life  of  Lamb,  p.  94. 

2  Livingston,  Gazette,  July  28,  1774. 
8  N.  Y.  Journal,  August  4,  1774. 


34  JOHN  JAY. 

Thus,  fortunately,  at  the  very  inception  of 
the  Revolution,  before  the  faintest  clatter  of 
arms,  the  popular  movement  was  placed  in 
charge  of  the  Patricians  as  they  were  called, 
rather  than  of  the  Tribunes,  as  respectively 
represented  by  Jay  and  McDougall.  "  The 
former  were  composed  of  the  merchants  and 
gentry,  and  the  latter  mostly  of  mechanics. 
The  latter  were  radicals,  and  the  former  joined 
with  the  Loyalists  in  attempts  to  check  the 
influences  of  the  zealous  democrats."  1  At  the 
meeting  on  May  19th,  which  ratified  the  elec- 
tion of  the  Committee  of  Fifty-one,  Gouverneur 
Morris  was  present,  and  remarked  with  uneasi- 
ness the  successful  attempt  of  the  minority  to 
control  the  more  numerous  but  less  skillful 
party.  For  at  the  moment  a  reaction  seemed 
imminent ;  and  the  next  day  he  wrote  with  some 
bitterness,  "  I  see,  and  I  see  it  with  fear  and 
trembling,  that  if  the  disputes  with  Britain  con- 
tinue, we  shall  be  under  the  worst  of  all  possi- 
ble dominions.  We  shall  be  under  the  domina- 
tion of  a  riotous  mob.'*  2  As  it  happened,  the 
Tribunes  succeeded  in  modifying  to  suit  them- 
selves the  resolutions  adopted,  and  the  Patri- 
cians succeeded  in  sending  the  delegates  of 
their  choice  unpledged  to  the  Congress. 

1  Lossing,  Hist.  ofN.  Y.  City,  i.  32. 

2  Gouverneur  Morris  to  Penn,  May  20,  1774,    Sparks,  G. 
Morris,  i.  25. 


CONSERVATIVE  WHIG  LEADER.  35 

On  Monday,  August  29th,  Jay  set  off  for 
Philadelphia  alone,  and  without  announcing  his 
departure,  though  he  joined  his  father-in-law, 
William  Livingston,  at  Elizabeth,  thus  avoiding 
the  complimentary  farewell  with  which  the  peo- 
ple speeded  his  fellow-delegates.  "  Mr.  Jay  is 
a  young  gentleman  of  the  law,  of  about  twenty- 
six  [in  fact,  twenty-nine] ,  Mr.  Scott  says,  a  hard 
student  and  a  good  speaker,"  is  the  entry  in  the 
diary  of  John  Adams,  jotted  down  a  few  days 
earlier,  as  he,  too,  was  riding  on  to  Philadel- 
phia.1 

There  the  Congress  met  at  Carpenters'  Hall, 
on  September  5th,  and  the  delegates  sat  stead- 
ily day  after  day,  for  six  weeks,  from  eleven  till 
four  o'clock.2  Here  for  the  first  time  were  gath- 
ered together  from  the  different  colonies  repre- 
sentative men  of  every  shade  of  opinion,  whose 
reputations  and  very  names  were  as  yet  for  the 
most  part  unknown  to  one  another.  "  To  draw 
the  character  of  all  of  them,"  wrote  John  Adams, 
after  the  lapse  of  half  a  century,  "  would  require 
a  volume,  and  would  now  be  considered  a  cari- 
cature print,  —  one  part  blind  Tories,  another 
Whigs,  and  the  rest  mongrels."3  It  was  nat- 
ural enough  that  such  should  be  the  case,  for  the 

1  John  Adams's  Works,  ii.  350. 

2  Sparks,  Gouverneur  Morris,  i.  217. 

3  John  Adams's  Works,  x.  78,  79. 


36  JOHN  JAY. 

Congress  was  not  a  revolutionary  body  in  the 
sense  in  which  the  phrase  could  be  applied  to 
the  provincial  congresses  and  conventions  of  the 
next  few  years.  In  its  origin  and  organization 
it  usurped  no  illegal  authority,  but  was  a  purely 
consultative  assembly,  like  those  that  had  met 
occasionally  in  times  of  emergency  earlier  in  the 
century.  "  The  powers  of  Congress  at  first  were 
indeed  little  more  than  advisory,"  said  Judge 
Iredell  of  the  United  States  Supreme  Court ; 
"  but,  in  proportion  as  the  danger  increased, 
their  powers  were  gradually  enlarged." 1  So 
great  was  Jay's  sense  of  the  diversity  of  opinion 
that  when  it  was  moved  to  open  the  first  meet- 
ing with  prayer,  he  objected,  though  as  devout 
a  man  as  any  present,  "  because,"  said  Adams, 
"  we  were  so  divided  in  religious  sentiments."  2 
Still,  in  spite  of  this  caution,  a  chaplain  was 
appointed,  whose  prayers,  though  he  afterwards 
joined  the  royalists,  excited  no  dissension. 

The  first  regular  business  of  Congress  was  to 
appoint  a  committee  "  to  state  the  rights  of  the 
Colonies  in  general."  Jay  was  a  member  of  the 
committee,  and,  when  a  debate  arose  on  the 
source  of  the  rights  of  the  Colonies,  he  stated 
the  views  that  finally  prevailed.  "  It  is  neces- 
sary," he  said,  "  to  recur  to  the  law  of  nature 

1  3  Ball.  91. 

2  John  Adams's  Works,  x.  79. 


CONSERVATIVE    WHIG  LEADER.  37 

and  the  British  Constitution  to  ascertain  our 
rights.  The  '  Constitution  '  of  Great  Britain 
will  not  apply  to  some  of  the  charter  rights."  l 
In  this  reference  to  "  the  law  of  nature  "  may  be 
detected  a  suggestion  of  revolutionary  methods, 
which  at  the  moment  was  doubtless  not  traced 
to  its  logical  conclusion.  The  discussion,  on  the 
contrary,  was  practical  rather  than  theoretical, 
and  "  the  great  state  papers  of  American  lib- 
erty," of  which  Jay  wrote  so  many,  "  were  all 
predicated  on  the  abuse  of  chartered,  not  of  ab- 
stract rights."  2  This  was  indeed  the  chief  dis- 
tinction between  the  beginnings  of  the  American 
and  the  French  revolutions,  and  was  one  cause, 
and  not  the  least  efficient,  for  the  permanent  re- 
sults of  the  first. 

The  question  of  voting  in  Congress  had  next 
to  be  determined.  Patrick  Henry,  urging  vot- 
ing by  delegates  without  regard  to  the  State 
as  a  unit,  made  the  famous  speech  in  which 
he  declared,  "  I  am  not  a  Virginian,  but  an 
American.  ...  I  go  upon  the  supposition  that 
government  is  at  an  end.  All  distinctions  are 
thrown  down.  All  America  is  thrown  into  one 
mass."  "  Could  I  suppose,"  Jay  replied,  "  that 
we  came  to  frame  an  American  constitution, 

1  John  Adams's  Works,  ii.  370. 

2  Gibbs,  History  of  the  Administrations  of  Washington  and 
Adams,  i.  3. 


38  JOHN  JAY. 

instead  of  endeavoring  to  correct  the  faults  in 
an  old  one,  I  can't  yet  tliink  that  all  govern- 
ment is  at  an  end.  The  measure  of  arbitrary 
power  is  not  yet  full,  and  I  think  it  must  run 
over,  before  we  undertake  to  frame  a  new  con- 
stitution." l  In  this  last  sentence  is  found  the 
principle  of  Jay's  conduct  throughout  the  early 
revolutionary  period,  before  the  Declaration  of 
Independence.  It  was  at  once  the  path  of  duty 
and  of  prudence  ;  for  only  in  this  way  could 
the  people  be  compelled  by  the  logic  of  facts  as 
well  as  of  argument  into  something  like  una- 
nimity. In  the  matter  of  voting,  Jay's  party 
prevailed,  and  it  was  decided  that  each  colony 
should  have  one  vote,  but  that  this  decision 
should  not  be  made  a  precedent.  When  the 
discussion  arose  which  ended  in  the  adoption 
of  the  non-importation  resolution  on  September 
27th,  Jay  also  expressed  the  opinion  of  the  ma- 
jority, unwisely  according  to  nineteenth  century 
notions  of  political  economy,  but  most  wisely 
in  the  light  of  those  days  and  in  the  political 
emergency  of  the  moment.  "  Negotiation,  sus- 
pension of  commerce,  and  war,"  he  said,  "  are 
the  only  three  things.  War  is,  by  general  con- 
sent, to  be  waived  at  present.  I  am  for  negotia- 
tion and  suspension  of  commerce."  2  On  Sep- 

1  John  Adams's  Works,  ii.  367,  368. 

2  Ibid.,  ii.  385. 


CONSERVATIVE  WHIG  LEADER.  39 

tember  28th  a  motion  was  introduced  that 
proved  the  extreme  conservatism  of  the  Con- 
gress. Joseph  Galloway,  of  Pennsylvania,  made 
a  proposition  which  Adams  condensed  as  fol- 
lows :  "  The  plan,  two  classes  of  laws  :  1.  Laws 
of  internal  policy.  2.  Laws  in  which  more  than 
one  colony  is  concerned  —  raising  money  for  war. 
No  one  act  can  be  done  without  the  assent  of 
Great  Britain.  No  one  without  the  assent  of 
America.  A  British- American  Legislature."  In 
other  words,  all  affairs  in  which  more  than  one 
colony  was  interested,  or  which  affected  Great 
Britain  and  the  colonies,  were  to  be  regulated 
by  a  president  general  appointed  by  the  crown, 
and  by  a  grand  council  of  delegates  from  the 
various  assemblies.  The  motion  was  defeated 
only  by  vote  of  six  colonies  to  five,  though  it 
was  afterwards  ordered  expunged  from  the  min- 
utes ;  but  Jay  spoke  for  it.  "  I  am  led  to  adopt 
this  plan,"  he  said.  "  It  is  objected  that  this 
plan  will  alter  our  constitution,  and  therefore 
cannot  be  adopted  without  consulting  constitu- 
ents. Does  this  plan  give  up  any  one  liberty, 
or  interfere  with  any  one  right  ?  "  l 

Jay  was  then  placed  on  a  committee  to  draft 
an  address  to  the  people  of  Great  Britain,  and  a 
memorial  to  the  people  of  British  America ;  and 
the  former  was  assigned  to  him.  The  key-note 

1  John  Adams's  Works,  ii.  389. 


40  JOHN  JAY. 

of  the  address  was :  "  We  consider  ourselves, 
and  do  insist  that  we  are  and  ought  to  be,  as 
free  as  our  fellow-subjects  in  Britain,  and  that 
no  power  on  earth  has  a  right  to  take  our  prop- 
erty from  us  without  our  consent.  .  .  .  You 
have  been  told  that  we  are  seditious,  impatient 
of  government,  and  desirous  of  independence. 
Be  assured  that  these  are  not  facts,  but  calum- 
nies. .  .  .  Place  us  in  the  same  situation  that 
we  were  at  the  close  of  the  last  war  [1763],  and 
our  former  harmony  will  be  restored."  Jay  shut 
himself  up  in  a  room  in  a  tavern  to  write  the  ad- 
dress. It  was  at  once  reported  favorably  by  the 
committee  and  adopted  by  Congress,  and  Jeffer- 
son, while  still  ignorant  of  the  authorship,  de- 
clared it  "  a  production  certainly  of  the  finest 
pen  in  America." 1  After  a  session  of  some  six 
weeks,  Congress  dissolved,  recommending  the 
appointment  of  local  committees  to  carry  out 
the  non-importation  association. 

The  action  of  the  Congress  won  popular  favor, 
and  the  New  York  delegates  on  their  return 
were  presented  by  their  former  critics,  the  Com- 
mittee of  Mechanics,  with  an  address  acknowl- 
edging their  "  readiness  in  accepting  and  fidel- 
ity in  executing  the  high  and  important  trust " 
reposed  in  them  ;  and  in  their  answer  the  dele- 
gates showed  themselves  equally  free  from  par- 

1  Jefferson's  Writings,  i.  8. 


CONSERVATIVE  WHIG  LEADER.  41 

tisanship  :  "  Let  us  all,  with  one  heart  and  voice, 
endeavor  to  cultivate  and  cherish  a  spirit  of 
unanimity  and  mutual  benevolence,  and  to  pro- 
mote that  internal  tranquillity  which  can  alone 
give  weight  to  our  laudable  efforts  for  the 
preservation  of  our  freedom,  and  crown  them 
with  success." l  Jay  was  at  once  elected  one  of 
a  committee  of  sixty,  called  a  Committee  of  In- 
spection, that  superseded  the  old  Committee  of 
Fifty-one,  and  that  was  specially  charged  with 
promoting  non-importation.  It  is  not  surprising 
that  in  this  familiar  business  the  Committee  of 
Mechanics  cooperated  heartily.2  The  committee 
for  the  relief  of  Boston,  of  which  Jay  was  also  a 
member,  was  likewise  not  unoccupied.  On  one 
day,  December  23d,  for  instance,  they  received 
"for  Boston,  from  the  people  of  Hanover, 
twelve  barrels  of  fine,  eight  of  common,  and  five 
of  cornel  flour,  and  XI 7  17s.  in  cash,  and  from 
the  precinct  of  Shengonk,  thirteen  barrels  of 
flour  and  three  of  corn."  3  The  Committee  of 
Inspection  was  variously  engaged,  searching 
ships  for  imported  goods,  examining  captains 
and  boatmen,  selling  confiscated  property  at 
public  vendue,  warning  the  people  of,  for  in- 
stance, the  scarcity  of  nails,  and  recommending 

1  Jay  MSS. 

2  Leake,  Life  of  John  Lamb,  p.  95. 
8  New  York  Journal,  Dec.  29,  1774. 


42  JOHN  JAY. 

that  none  should  be  exported,  or  contradicting 
false  statements  published  by  the  loyalist  editor, 
Kivington.1 

The  time  now  came  for  the  election  of  dele- 
gates to  the  second  Continental  Congress,  which 
was  to  meet  May  10th,  1775.  The  Committee 
of  Inspection  ordered  that  delegates  should  be 
chosen  by  the  counties,  to  meet  in  New  York 
City,  and  select  from  among  themselves  repre- 
sentatives for  the  province.  A  meeting  of  the 
citizens  of  New  York,  called  for  the  purpose, 
marched  to  the  Exchange.  "Two  Standard 
Bearers  carried  a  large  Union  Flag,  with  a  Blue 
Field,  on  which  were  the  following  inscriptions : 
On  one  side  '  George  III.  Rex,  and  the  Liber- 
ties of  America.  No  Popery.'  On  the  other, 
'The  Union  of  the  Colonies,  and  the  Measures 
of  Congress.'  "  2  This  time,  instead  of  confu- 
sion being  created  by  the  radicals  or  "  Tribunes," 
the  meeting  was  interrupted,  but  ineffectively, 
by  Tories,  who  had  purposely  met  the  same 
morning  at  the  house  of  the  Widow  de  la  Mon- 
taigne, and  adjourned  the  hour  of  the  meeting  to 
the  Exchange,  where,  with  clubs,  they  got  for  a 
time  the  better  of  the  argument  until  the  Whigs 
plundered  a  neighboring  cooper's  yard,  and 

1  New  York  Journal,  March  23,  April  13,  1775. 

2  Ibid.,  March  9,  1775. 


CONSERVATIVE  WHIG  LEADER.  43 

drove  them  off  the  ground  with  pieces  of  hoop 
sticks.1 

Many  of  the  councilors  and  assemblymen,  in- 
cluding the  speaker,2  attended  the  meeting  at 
the  Exchange,  a  further  proof  of  the  march  of 
public  opinion.  There  Jay  was  elected  to  the 
Provincial  Convention,  as  it  was  called,  though 
its  functions  were  purely  electoral  and  it  sat 
only  a  few  days.  By  this  body  he  was  chosen, 
with  his  former  associates  (except  Low  who 
declined  and  subsequently  turned  royalist),  and 
five  others,  a  delegate  to  the  second  Continental 
Congress.  To  their  delegates  the  people  now 
granted  authority  incomparably  greater  than 
that  legitimately  possessed  by  the  first  Congress, 
intrusting  specifically  "  full  power  to  them  or 
any  five  of  them  to  concert  and  determine  upon 
such  measures  as  shall  be  judged  most  effectual 
for  the  preservation  and  establishment  of  Amer- 
ican rights  and  privileges,  and  for  the  restora- 
tion of  harmony  between  Great  Britain  and  the 
Colonies."3 

Meantime,  as  the  confusion  of  the  country 
increased,  while  all  regular  constitutional  gov- 
ernment had  practically  ceased  to  exist,  the 
Committee  of  Inspection  found  their  powers  too 

1  Gordon,  Hist.  ofN.  F.,  i.  306. 

2  Memorandum  in  Jay  MSS. 

8  Journals  of  Prov.  Congress,  etc.,  i.  22,  75. 


44  JOHN  JAY. 

limited ;  they  therefore  recommended  the  elec- 
tion of  a  committee  of  one  hundred,  with  author- 
ity adequate  to  the  emergency,  to  conduct  the 
government,  to  enforce  the  association,  and  to 
elect  deputies  to  a  Provincial  Congress  to  meet 
in  New  York,  May  22d.  The  old  Colonial 
Assembly  dissolved  on  April  3,  1775,  never  to 
meet  again  ;  and  on  April  28th,  the  new  com- 
mittee was  elected,  usually  known  as  the  Com- 
mittee of  Observation,  but  in  reality  a  revolu- 
tionary committee  of  safety.  Jay  and  his  next 
younger  brother,  Frederick,  were  members.  The 
new  committee  at  once  drew  up  for  general  cir- 
culation an  Association  engaging  to  obey  the 
committees  and  Congress,  and  to  oppose  every  at- 
tempt by  Parliament  to  enforce  taxation.  They 
had  the  streets  patrolled  at  night  to  prevent  the 
exportation  of  provisions,  and  called  on  the  citi- 
zens to  arm.  May  5th,  a  letter  to  "  The  Lord 
Mayor  and  Magistrates  of  London,"  drafted  by 
Jay,  was  signed  by  him  and  eighty-eight  mem- 
bers of  the  committee.  "  This  city,"  the  letter 
ran,  "  is  as  one  man  in  the  cause  of  Liberty.  .  .  . 
While  the  whole  continent  are  ardently  wishing 
for  peace  on  such  terms  as  can  be  acceded  to  by 
Englishmen,  they  are  indefatigable  in  prepar- 
ing for  the  last  appeal ;  "  l  a  brave  statement  to 
publish,  when  the  committee  knew  that  the  city 
1  New  Yoik  Journal,  May  25,  1775. 


CONSERVATIVE   WHIG  LEADER.  45 

was  absolutely  defenseless,  and  that  troops  had 
already  been  ordered  thither  and  were  on  their 
way.  On  May  10th  the  second  Continental 
Congress  assembled  at  Philadelphia.  The  shot 
had  been  fired  at  Lexington.  The  measures 
before  Congress  were  of  necessity  warlike. 
An  address  to  the  inhabitants  of  Canada  was 
drafted  by  Jay,  reported  from  a  committee  in 
which  he  was  associated  with  Samuel  Adams 
and  Silas  Deane,  and  on  adoption  was  ordered 
to  be  translated  into  French  for  circulation 
across  the  border.  The  address  warned  the 
Canadians  that  the  measures  urged  against  the 
Americans  may  be  turned  against  them,  and 
concluded  :  "As  our  concern  for  your  welfare 
entitles  us  to  your  friendship,  we  presume  you 
will  not,  by  doing  us  an  injury,  reduce  us  to 
the  disagreeable  necessity  of  treating  you  as 
enemies."  Jay  was  a  member  of  the  committee 
which  prepared  the  Declaration,  published  July 
6th,  "  setting  forth  the  causes  and  necessity  of 
their  taking  arms."  "  Against  violence  actually 
offered,  we  have  taken  up  arms.  We  shall  lay 
them  down  when  hostilities  shall  cease  on  the 
part  of  the  aggressors,  and  all  danger  of  their 
being  renewed  shall  be  removed,  and  not  before." 
In  spite  of  strong  opposition,  Jay  persuaded 
Congress  of  the  propriety  of  a  loyal  and  respect- 
ful second  petition  to  the  King.  A  committee 


46  JOHN  JAY. 

including  himself  was  appointed  to  draft  it,  but 
it  was  actually  written  by  Dickinson,  and  on 
July  8th  the  petition  was  signed  by  the  members 
of  Congress  individually.  It  was  necessary,  to 
quote  Jay's  words  of  a  year  before,  "  that  the 
measure  of  arbitrary  power  .  .  .  must  run  over." 
An  address  to  the  people  of  Jamaica  and  Ire- 
land was  also  agreed  to  by  Congress,  and  was 
written  by  Jay,  at  the  request  of  William  Liv- 
ingston. "  Though  vilified  as  wanting  spirit,  we 
are  determined  to  behave  like  men ;  though  in- 
sulted and  abused,  we  wish  for  reconciliation ; 
though  defamed  as  seditious,  we  are  ready  to  obey 
the  laws,  and  though  charged  with  rebellion,  will 
cheerfully  bleed  in  defense  of  our  sovereign  in 
a  righteous  cause ; "  but  the  main  object  of  the 
address  was  to  explain  and  excuse,  as  unavoida- 
ble, the  cessation  of  trade.  "  I  never  bestowed 
much  attention  to  any  of  those  addresses,"  wrote 
rugged  old  John  Adams  to  Jefferson  toward  the 
close  of  his  life,  "  which  were  all  but  repetitions 
of  the  same  things ;  the  same  facts  and  argu- 
ments ;  dress  and  ornaments,  rather  than  body, 
soul,  a  substance.  ...  I  was  in  great  error,  no 
doubt,  and  am  ashamed  to  confess  it,  for  these 
things  were  necessary  to  give  popularity  to  the 
cause,  both  at  home  and  abroad."  1 

Jay's  position  in  urging  the  second  petition  to 

1  John  Adams's   Works,  x.  80. 


CONSERVATIVE   WHIG  LEADER.  47 

the  King  becomes  still  more  clear,  when  we  listen 
to  his  speech  to  the  Assembly  of  New  Jersey 
in  December,  when  Congress  sent  him  with  two 
others  to  dissuade  them  from  a  similar  petition. 
He  argued,  said  a  member  present,  that  "we 
had  nothing  to  expect  from  the  mercy  or  the 
justice  of  Britain.  That  petitions  were  not  now 
the  means ;  vigor  and  unanimity  the  only  means. 
That  the  petition  of  United  America,  presented 
by  Congress,  ought  to  be  relied  on ;  others  unnec- 
essary ;  and  hoped  the  House  would  not  think 
otherwise."  l  "  Before  this  time,"  wrote  Jay  in 
1821,  "  I  never  did  hear  any  American  of  any 
class,  or  of  any  description,  express  a  wish  for  the 
independence  of  the  Colonies,"  and  this  state- 
ment was  confirmed  by  Jefferson  and  Adams. 
Indeed,  in  a  paper,  undated,  but  written  proba- 
bly at  this  time,  the  autumn  of  1775,  Jay  quotes 
paragraph  after  paragraph 2  from  the  Journal 
of  Congress,  to  prove  "the  malice  and  falsity" 
of  the  "ungenerous  and  groundless  charge  of 
their  aiming  at  independence,  or  a  total  sepa- 
ration from  Great  Britain."  "  From  these  testi- 
monies," Jay  concludes,  "  it  appears  extremely 
evident  that  to  charge  the  Congress  with  aim- 
ing at  a  separation  of  these  colonies  from  Great 

1  Hare,  Archives,  4th  Ser.,  iv.  1874,  1875. 

2  The  MS.  pages  cited  are  pages  59,  63,  64,  84,  87,  149, 
150,  155,  163,  165,  172,  etc.,  Jay  MSS. 


48  JOHN  JAY. 

Britain,  is  to  charge  them  falsely  and  without  a 
single  spark  of  evidence  to  support  the  accusa- 
tion. ...  It  is  much  to  be  wished  that  the  peo- 
ple would  read  the  proceedings  of  the  Congress 
and  consult  their  own  judgments,  and  not  suffer 
themselves  to  be  duped  by  men  who  are  paid  for 
deceiving  them."  It  was,  then,  the  rejection  of 
the  petition,  as  events  showed,  which,  as  much 
as  anything,  suggested  and  justified  the  idea  of 
independence  to  the  minds  of  the  people. 

Jay  was  one  of  a  committee  of  four  which  re- 
ported upon  a  request  from  Massachusetts  for 
advice,  and  recommended  the  semi  -  revolution- 
ary step  of  electing  a  new  Assembly,  but  accord- 
ing to  the  customary  manner.  He  was  also  one 
of  a  committee  of  five  which  drafted  the  declar- 
ation for  Washington  to  publish  on  his  arrival 
before  Boston.  In  many  of  the  debates  in 
Congress  he  took  part,  and  not  always  on  the 
popular  side.  It  was  proposed  to  close  the  cus- 
tom-houses throughout  the  country,  so  as  to 
place  New  York,  North  Carolina,  and  Georgia 
on  the  same  footing  as  the  other  provinces. 
"  Because  the  enemy  has  burnt  Charlestown," 
said  Jay,  "  would  gentlemen  have  us  burn  New 
York?  .  .  .  The  question  is,  whether  we  shall 
have  trade  or  not  ?  And  this  is  to  introduce  a 
.  .  .  scheme  which  will  drive  away  all  your 
sailors,  and  lay  up  all  your  ships  to  rot  at  the 


CONSERVATIVE  WHIG  LEADER.  49 

wharves."  In  November  Jay  was  appointed 
with  Franklin,  Harrison,  Johnson,  and  Dickin- 
son, a  secret  committee  to  correspond  "  with  our 
friends  in  Great  Britain,  Ireland,  and  other 
parts  of  the  ivorld."  *  In  this  capacity  Jay  had 
more  than  one  promising  but  fruitless  interview 
with  the  first  of  the  secret  emissaries  of  the 
French  Court,  Bonvouloir,  and  these  apparently 
harmless  interviews  were  conducted  with  almost 
fantastic  mystery.  "  Each  comes  to  the  place 
indicated  in  the  dark,"  wrote  Bonvouloir,  in  one 
of  his  reports,  "  by  different  roads.  They  have 
given  me  their  confidence  as  a  friendly  individ- 
ual." 2  In  the  autumn  the  committee  sent  Si- 
las Deane  to  France,  who,  until  his  recall,  held 
frequent  correspondence  with  Jay  by  fictitious 
letters  with  the  wide  margins  written  upon  with 
invisible  ink; 

Queens  County,  New  York,  having  refused 
formally  to  send  delegates  to  the  Provincial 
Congress,  William  Livingston,  Jay,  and  Samuel 
Adams  were  appointed  a  committee  to  consider 
the  present  state  of  the  colony.  The  report, 
which  Jay  is  said  to  have  drawn,  urged  the 
arrest  of  certain  disaffected  persons,  and  that 
those  who  had  voted  against  sending  delegates 
should  be  prohibited  from  leaving  the  country. 

1  Journals  of  Congress,  1775,  pp.  272,  273. 

2  Durant,  New  Materials  for  History  of  American  Rev.,1,  5. 


50  JOHN  JAY. 

The  New  York  Congress  had  applied  for  sol- 
diery to  disarm  the  latter  unfortunate  persons, 
and,  the  committee  assenting,  the  disarmament 
was  effected  forthwith  by  Col.  Nathaniel  Heard, 
and  Lord  Stirling's  battalion. 

Jay  was  also  placed  on  a  committee  to  draw 
up  a  declaration  justifying  the  determination 
of  Congress  to  fit  out  privateers  against  the 
commerce  of  England.  He  was  on  committees 
to  devise  means  for  supplying  medicines  for 
the  army;  to  inquire  into  the  dispute  between 
Pennsylvania  and  Connecticut ;  to  examine  into 
the  qualifications  of  generals  ;  to  purchase  pow- 
der for  the  troops  besieging  Boston  ;  to  recom- 
mend the  proper  disposition  of  the  tea  then  in 
the  colonies ;  and  to  ascertain  the  truth  of  a  re- 
port that  Governor  Tryon,  of  New  York,  had 
made  "  the  passengers  in  the  late  packet  swear 
not  to  disclose  anything  relative  to  American 
affairs  except  to  the  Ministry."  His  time,  then, 
was  fully  occupied  in  anxious  and  laborious 
work.  But  even  the  Continental  Congress  some- 
times enjoyed  a  holiday.  "  The  Congress  spent 
yesterday  in  festivity,"  wrote  Jay  to  his  wife, 
September  29,  1775.1  "The  Committee  of 
Safety  were  so  polite  as  to  invite  them  to  make 
a  little  voyage  in  their  Gondolas  as  far  as  the 
fort,  which  is  about  twelve  miles  from  the  city, 
i  Jay  MSS. 


CONSERVATIVE  WHIG  LEADER.  51 

Each  Galley  had  its  company,  and  each  com- 
pany entertained  with  variety  of  music,  etc.  We 
proceeded  six  or  eight  miles  down  the  river, 
when,  the  tide  being  spent  and  the  wind  un- 
favorable, we  backed  about  and  with  a  fine 
breeze  returned,  passed  the  city,  and  landed  six 
miles  above  the  town  at  a  pretty  little  place 
called  Paris  Villa.  ...  I  wished  you  and  a  few 
select  friends  had  been  with  me.  This  idea, 
though  amidst  much  noise  and  mirth,  made  me 
much  alone.  Adieu,  my  beloved." 

At  first  there  was  some  difficulty  in  getting 
the  colonies  to  make  any  provision  for  the  dele- 
gates. New  York  finally  allowed  them  four 
dollars  per  day,  though  "  the  allowance,"  says 
Jay,  "  does  by  no  means  equal  the  loss."  As 
Christmas  approached,  Jay  asked  for  leave  of 
absence,  but  was  refused,  since,  with  two  of  the 
five  New  York  delegates  away  on  leave,  the 
province  would  otherwise  be  unrepresented. 
"  Don't  you  pity  me,  my  dear  Sally  ?  "  writes 
the  young  husband.  "  It  is,  however,  some  con- 
solation that,  should  the  Congress  not  adjourn 
in  less  than  ten  days,  I  have  determined  to  stay 

with  you  till ,  and,  depend  upon  it,  nothing 

but  actual  imprisonment  will  be  able  to  keep  me 
from  you."  1 

In  the  mean  time  Jay  was  not  unobservant  of 
1  To  Mrs.  Jay,  Dec.  23,  1775,  Jay  MSS. 


52  JOHN  JAY. 

events  in  New  York.  In  November  the  press  of 
Rivington,  the  Tory  printer,  had  been  destroyed 
by  a  party  of  light  horsemen  from  Connecticut, 
who  also  seized  Bishop  Seabury  and  others  who 
had  protested  against  the  doings  of  the  Congress. 
Jay's  comments  show  a  rather  complicated  state 
of  mind.  "  For  my  part  I  do  not  approve  of 
the  feat,  and  think  it  neither  argues  much  wis- 
dom nor  much  bravery ;  at  any  rate,  if  it  was  to 
have  been  done,  I  wish  our  own  people,  and  not 
strangers,  had  taken  the  liberty  of  doing  it.  I 
confess  I  am  not  a  little  jealous  of  the  honor  of 
the  province,  and  am  persuaded  that  its  reputa- 
tion cannot  be  maintained  without  some  little 
spirit  being  mingled  with  its  prudence."  1  To 
Alexander  McDougall,  in  the  New  York  Con- 
vention, he  writes,  urging  them  "  to  impose  light 
taxes  rather  with  a  view  to  precedent  than 
profit."  McDougall  now  had  become  an  inti- 
mate friend.  A  month  earlier  he  had  been  the 
means  of  Jay's  making  the  only  application  for 
office  he  ever  made  in  his  life.  McDougall 
wrote,  complaining  of  the  reluctance  of  men  of 
position  to  take  commands  in  the  provincial 
militia,  and  at  once  Jay  applied  for  appoint- 
ment, and  was  appointed  colonel  of  the  second 
regiment,  New  York  City  Militia.2  For  the 

1  To  Colonel  Woodhull,  Nov.  26,  1775,  Jay  MSS. 

2  October,  27,  1775. 


CONSERVATIVE   WHIG  LEADER.  53 

next  year  or  two  his  name  appears  as  Colonel 
Jay  in  the  Journal  of  the  New  York  Congress 
and  conventions.  Jay  was  also  urged  by  Ham- 
ilton, the  astutest  politician  of  nineteen  years 
that  ever  lived,  to  frustrate  the  Tory  scheme  to 
issue  writs  for  a  new  Assembly,  by  becoming, 
with  Livingston,  Alsop,  and  Lewis,  a  candidate 
for  New  York  County.  "  The  minds  of  all  our 
friends  will  naturally  tend  to  these,"  he  added, 
"  and  the  opposition  will  of  course  be  weak  and 
contemptible ;  for  the  Whigs,  I  doubt  not,  con- 
stitute a  large  majority  of  the  people."  1 

In  April,  1776,  Jay  had  been  elected  a  dele- 
gate to  the  New  York  Provincial  Congress, 
which  met  at  the  City  Hall  on  May  14th.  Four 
days  before  the  day  of  meeting,  the  Continental 
Congress  had  passed  a  resolution  recommending 
the  colonies  "  to  adopt  such  government  as  shall, 
in  the  opinion  of  the  representatives  of  the  peo- 
ple, best  conduce  to  the  happiness  and  safety  of 
their  constituents  in  particular,  and  America  in 
general."  Jay  was  at  once  summoned  to  lend 
his  counsel  in  the  emergency,  without  vacating 
his  seat  in  the  Continental  Congress,  though  the 
New  York  Provincial  Congress  forbade  his 
leaving  "without  further  orders."  For  this 
reason  it  was  that  Jay's  name  is  not  among  those 
of  the  Signers  of  the  Declaration  of  Independ- 

1  From  Alexander  Hamilton,  Dec.  31,  1775,  Jay  MSS. 


54  JOHN  JAY. 

ence.  Obedient  to  the  call  of  his  colony,  Jay 
mounted  horse  and  started  forthwith  for  New 
York,  where  he  was  sworn  in  and  took  his  seat 
in  the  local  congress  on  May  25th.  He  was  at 
once  placed  on  one  committee  to  draft  a  law  re- 
lating to  the  peril  the  colony  is  exposed  to  by 
"  its  intestine  dangers," 1  and  on  another  to 
frame  into  resolutions  the  report  of  the  com- 
mittee on  the  recommendation  by  Congress  of 
a  new  form  of  government.2  Accordingly,  on 
June  llth,  certain  important  resolutions  on  the 
subject  of  independence  were  moved  by  Jay  and 
agreed  to :  "  That  the  good  people  of  this  Colony 
have  not,  in  the  opinion  of  this  Congress,  au- 
thorized this  Congress,  or  the  delegates  of  this 
Colony  in  the  Continental  Congress,  to  declare 
this  Colony  to  be  and  continue  independent  of 
the  Crown  of  Great  Britain." 

This  action  of  Jay's  was  not  due  to  any  doubt 
in  his  own  mind  as  to  the  necessity  of  the  pro- 
posed change,  but  simply  to  his  conservative  ad- 
herence to  constitutional  methods.  Duane,  his 
colleague  in  Congress,  wrote  urging  delay : 
"  The  orators  of  Virginia  with  Colonel  Henry 
at  their  head  are  against  a  change  of  govern- 
ment. .  .  .  The  late  election  of  deputies  for  the 
Convention  of  New  York  sufficiently  proves  that 

1  Journals  of  Prov.  Cong.,  i.  461. 

2  Ibid.,  i.  462. 


CONSERVATIVE  WHIG  LEAD  EH.  55 

those  who  assumed  excessive  fervor  and  gave 
laws  even  to  the  Convention  and  Committees 
were  unsupported  by  the  people.  There  seems, 
therefore,  no  reason  that  one  Colony  should  be 
too  precipitate  in  changing  the  present  mode  of 
government.  I  would  first  be  well  assured  of 
the  opinion  of  the  inhabitants  at  large.  Let 
them  be  rather  followed  than  driven  on  an  oc- 
casion of  such  moment." l  "  So  great  are  the 
inconveniences,"  replied  Jay,  "  resulting  from 
the  present  mode  of  government,  that  I  believe 
our  Convention  will  almost  unanimously  agree 
to  institute  a  better,  to  continue  until  a  peace 
with  Great  Britain  may  render  it  unnecessary."  2 
Further  reflection,  however,  convinced  him  that 
the  unmistakable  assent  of  the  people  was  the 
only  safe  foundation  for  a  new  government,  and 
perhaps,  too,  that  the  existing  Convention  was 
less  Republican  than  he  supposed.  "  Our  Con- 
vention," he  wrote  to  Livingston,  "  will,  I  be- 
lieve, institute  a  better  government  than  the 
present,  which,  in  my  opinion,  will  no  longer 
work  anything  but  mischief ;  and  although  the 
measure  of  obtaining  authority  by  instructions 
may  have  its  advocates,  I  have  reason  to  think 
that  such  a  resolution  will  be  taken  as  will  open 
a  door  to  the  election  of  new  or  additional  mein- 

1  From  James  Duane,  May  18,  1770. 

2  To  Duane,  May  29,  1776. 


56  JOHN  JAY. 

bers." l  It  should  be  remembered,  too,  that 
only  the  preceding  December  the  last  Provincial 
Congress  had  resolved,  "  that  it  is  the  opinion  of 
this  Congress,  that  none  of  the  people  of  this 
Colony  have  withdrawn  their  allegiance  from 
his  Majesty."  2  Such  being  the  case  in  Decem- 
ber, it  was  surely  prudent  in  June  to  refer  again 
to  the  people  before  announcing  their  independ- 
ence. 

The  Declaration  of  Independence,  that  was 
now  signing  at  Philadelphia,  was  a  turning-point 
in  Jay's  public  life.  In  the  Committee  of  Fifty- 
one  he  was  apparently  the  representative  of  the 
well-to-do  merchants  who  had  confidence  in  the 
son  of  Mr.  Peter  Jay.  Judicious  and  prudent, 
rather  than  emotional,  Jay's  disposition  was  at 
the  time  eminently  conservative.  With  the  ex- 
ample of  Boston  before  them,  with  excited  Sons 
of  Liberty  declaiming  in  every  tavern,  ringing 
bells,  parading  with  banners,  and  threatening- 
loyal  business  men  with  letters  signed  "  Com- 
mittee on  Tar  and  Feathers,"  there  was  grave 
danger  that  order  might  be  destroyed  by  mob 
violence,  and  trade  ruined  by  ill-considered  re- 
strictions. The  only  safety  was  in  deliberation 
and  caution.  The  colonies,  as  yet,  were  united 
neither  by  sentiment  nor  interest,  and  in  every 

1  To  R.  R.  Livingston,  May  29,  1776,  Jay  MSS. 

2  New  York  Journal,  Dec.  21,  1775. 


CONSERVATIVE  WHIG  LEADER.  57 

colony,  especially  in  New  York,  the  parties  of 
Whig  and  Tory,  the  radicals  and  conservatives, 
were,  in  aggregate  wealth  and  influence,  nearly 
equally  divided.  Of  Jay,  and  of  every  man  of 
that  day  like  him,  it  may  be  said,  though  in  a 
different  sense  from  that  of  the  old  Roman,  that 
cunctando  restituit  rem,  by  delay  he  created  a 
nation.  Conservative  though  not  Tory,  he  saw 
that  the  struggle  was  to  preserve  and  continue 
liberty  they  had  always  possessed,  rather  than 
to  win  liberty.  The  Revolution,  as  he  was  fond 
of  saying,  found  us  free  as  our  fathers  always 
were  ;  therefore  it  is  false  to  suggest  that  we 
were  ever  emancipated.  For  this  reason  was  the 
result  of  the  war  to  be  permanent,  since  it  was 
the  work  of  evolution,  rather  than  of  revolution. 
It  is  often  said  that  the  action  of  Jay  and  Dick- 
inson, in  promoting  petition  after  petition  to  the 
King  in  terms  of  almost  undignified  concilia- 
tion, lost  the  opportunity  for  successful  action 
and  protracted  the  war.  It  is  forgotten,  per- 
haps, that  at  that  early  period  the  only  action 
possible  would  have  been  spasmodic,  and  far 
from  unanimous;  and  that,  even  if  successful, 
a  sudden  and  short  war  would  have  left  un- 
changed the  disposition  of  half  the  people,  which 
even  the  long  years  of  the  Revolution  changed 
but  slowly.  The  reaction  which  followed  in  the 
distracted  days  of  the  Confederation,  and  which 


58  JOHN  JAY. 

nearly  wrecked  the  infant  state,  would  otherwise 
surely  have  resulted  in  thirteen  zealous  and  dis- 
united colonies,  instead  of  one  great  nation. 

To  this  end  did  the  work  of  Jay  tend,  con- 
sciously or  unconsciously.  To  this  end  was  the 
long  succession  of  state  papers  that  he  prepared 
as  draftsman,  so  to  speak,  of  the  Continental 
Congress.  To  this  end  was  his  work  in  New 
York,  reconciling  the  conservative  merchants 
and  the  radical  mechanics,  keeping  the  favor  of 
the  less  bigoted  royalists,  and  winning  gradually 
the  confidence  of  the  Sons  of  Liberty. 

Time  soon  decided  the  matter.  The  old  gov- 
ernment was  dead  beyond  resuscitation.  An- 
archy threatened,  the  revolutionary  committees 
were  essentially  local  and  temporary  expedients. 
The  war  might  last  for  years,  and  a  more  stable 
government  was  essential.  "I  see  the  want  of 
government  in  many  instances,"  wrote  McDou- 
gall.  "  I  fear  liberty  is  in  danger  from  the  li- 
centiousness of  the  people  on  the  one  hand,  and 
the  army  on  the  other.  The  former  feel  their 
own  liberty  in  the  extreme."  1  A  significant  ad- 
mission from  the  old  Son  of  Liberty.  It  was  the 
course  of  wisdom  to  establish  a  new  form  of  gov- 
ernment, and  it  was  only  the  circumstances  of 
the  moment  that  required  it  to  be  based  on  a 
Declaration  of  Independence. 

1  From  Alex.  McDougall,  March  20,  1776,  Jay  MSS. 


CHAPTER  III. 

REVOLUTIONARY   LEADER. 

1776-1779. 

THE  new  Provincial  Congress  of  New  York 
met  at  White  Plains  on  July  9th,  and  at  once 
referred  to  a  committee  a  copy  of  the  Declara- 
tion of  Independence,  just  received  from  Phil- 
adelphia. From  this  committee,  on  the  same 
afternoon,  Jay,  as  chairman,  reported  a  resolu- 
tion of  his  own  drafting,  which  was  unanimously 
adopted:  "That  the  reasons  assigned  by  the 
Continental  Congress  for  declaring  the  United 
Colonies  free  and  independent  States  are  cogent 
and  conclusive;  and  that  while  we  lament  the 
cruel  necessity  which  has  rendered  that  measure 
unavoidable,  we  approve  the  same,  and  will,  at  the 
risk  of  our  lives  and  fortunes,  join  with  the  other 
colonies  in  supporting  it."  1  The  New  York  del- 
egates in  Congress  were  accordingly  authorized 
to  sign  the  Declaration,  which  they  had  hitherto 
refrained  from  doing  on  the  ground  of  lack  of 
power.  The  next  day  the  style  of  the  House 

1  Journals  of  Provincial  Congress,  p.  518. 


60  JOHN  JAY. 

was  changed  to  the  "  Convention  of  the  Repre- 
sentatives of  the  State  of  New  York."  British 
ships  of  war  were  at  this  moment  at  Tarrytown, 
within  six  miles  of  White  Plains. 

Jay  had  been  a  member  of  the  committee  that 
reported  to  the  old  Convention,  June  6th,  a  purely 
formal  acknowledgment  of  the  Virginia  Resolu- 
tions of  Independence ;  a  report  which  the  Con- 
vention agreed  to  keep  secret  till  after  the  elec- 
tions of  delegates  "  to  establish  a  new  form  of 
government."  But  his  course  in  moving  the 
Declaration  of  July  9th  was  not  therefore  incon- 
sistent, "  most  refined  deceit,"  as  it  is  termed 
by  one  writer.1  For  the  old  convention  was  not 
authorized  to  commit  itself  upon  the  question, 
while  the  new  convention  was  so  authorized  spe- 
cifically. His  action  of  June  6th  and  llth  was 
identical  in  spirit  with  that  of  Duane  at  Phila- 
delphia, who  pledged  New  York  to  independ- 
ence, at  the  same  time  declaring  that  he  could 
not  legally  vote  on  the  question  until  further 
instructions  were  received  from  his  constitu- 
ents.2 Of  the  wisdom  of  the  measure,  even  with 
regard  to  its  effect  on  European  politicians,  Jay 
was  now  thoroughly  convinced ;  and  it  was  on 
this  ground  that  the  opposition  rested  in  Con- 

1  Dawson,  Westchester  Co.  in  the  Am.  Eev.,  186,   187,   196, 
197. 

2  Lamb,  Hist.  ofN.  Y.,  ii.  83. 


REVOLUTIONARY  LEADER.  61 

gress.  "  This  most  certainly,"  he  wrote  to  Lewis 
Morris,  "  will  not  be  the  last  campaign,  and  in 
my  opinion  Lord  Howe's  operations  cannot  be 
so  successful  and  decisive  as  greatly  to  lessen 
the  ideas  which  foreign  nations  have  conceived 
of  our  importance.  I  am  rather  inclined  to 
think  that  our  declaring  Independence  in  the 
face  of  so  powerful  a  fleet  and  army  will  impress 
them  with  an  opinion  of  our  strength  and  spirit ; 
and  when  they  are  informed  how  little  our  coun- 
try is  in  the  enemy's  possession,  they  will  unite 
in  declaring  us  invincible  by  the  arms  of  Brit- 
ain." i 

Almost  immediately  a  short  but  sharp  dissen- 
si9n  arose  between  the  Convention  and  Congress. 
The  latter  body  issued  a  colonel's  commission  to 
a  major  in  the  New  York  militia,  who  had  distin- 
guished himself  in  the  Canadian  campaign,  and 
ordered  him  to  raise  and  officer  in  New  York  a 
battalion  for  the  Continental  service.  Though 
Jay  had  urged  at  Philadelphia  in  the  spring  the 
wisdom  of  removing  from  colonial  control  all 
the  militia  so  soon  as  they  were  ordered  out  on 
active  duty,  the  contrary  practice  still  prevailed ; 
and  this  sudden  discrimination  in  the  case  of 
New  York  filled  him  and  the  Convention  with 
indignation,  as  an  arbitrary  exercise  of  power ; 
and  in  a  sharp  report,  which  the  Convention 

1  Sept.,  1776,  Jay  MSS. 


62  JOHN  JAY. 

moderated,  he  condemned  the  excuse  of  "  the 
necessity  of  the  case,"  as  a  fruitful  mother  of 
tyranny. 

New  York  city  was  now  occupied  by  the 
enemy,  and  the  British  fleet  in  the  bay  was 
daily  expected  up  the  river.  Warned  by  Wash- 
ington of  the  danger  of  the  passes  being  seized 
between  the  Hudson  and  Albany,  the  Conven- 
tion appointed  Jay  with  five  others  a  secret 
military  committee  "  to  devise  and  carry  into  ex- 
ecution such  measures  as  to  them  shall  appear 
most  effectual  for  obstructing  the  channel  of  Hud- 
son's River,  or  annoying  the  enemy's  ships ;  " 
and  the  next  day  authorized  them  to  impress 
"  boats,  .  .  .  wagons,  horses,  and  drivers  .  .  . 
as  well  as  to  call  out  the  militia,  if  occasion 
should  require." 1  The  committee  held  its  first 
meeting  at  the  house  of  Mr.  Van  Kleeck,  at 
Poughkeepsie,  and  at  once  sent  Jay  to  the 
Salisbury  Iron  Works  in  Connecticut  for  can- 
non and  shot.  He  found  himself  obliged  to 
obtain  permission  from  Governor  Trumbull  at 
Lebanon,  and  the  governor  had  to  consult  his 
council ;  but  finally  Jay  procured  several  small 
cannon  which  he  transported  safely  to  Hoffman's 
Landing  and  thence  to  Fort  Montgomery.2 

Jay  was  not  a  man  of  war ;   his  duties   as 

1  Journals  of  Provincial  Congress,  i.  526. 

2  Report  by  Jay,  Aug.  7  (?),  Jay  MSS. 


REVOLUTIONARY  LEADER.  63 

colonel  were  apparently  purely  formal ;  but  from 
his  connection  with  the  secret  committee  and 
other  military  committees  he  was  in  constant 
communication  with  the  generals  at  headquar- 
ters, with  McDougall  and  Troup,  and  later  with 
Washington,  Clinton,  and  Schuyler.  To  Jay, 
McDougall  commended  his  son,  a  prisoner  in 
Canada,  "  lest  he  should  in  the  exchange  of 
those  prisoners  be  forgot.  ...  If  I  should  do 
otherwise  than  well,  I  pray  remember  this  boy."  l 
"You  always  were  my  benefactor,"  wrote  Troup, 
"  and  I  hope  will  continue  so  as  long  as  I  walk 
in  the  line  of  prudence,  and  prove  myself  a  lover 
of  American  liberty.  "  2  And  it  was  to  Jay  that 
Schuyler,  embittered  by  the  partisan  charges 
that  were  provoked  by  the  evacuation  of  Ticon- 
deroga,  intrusted  the  defense  of  his  reputation. 
On  the  eve  of  an  expected  engagement  with  the 
British  troops  he  wrote  sadly  :  "  I  may  possibly 
get  rid  of  the  cares  of  this  life,  or  fall  into  their 
hands ;  in  either  case  I  entreat  you  to  rescue  my 
memory  from  that  load  of  calumny  that  ever  fol- 
lows the  unfortunate."  3  Of  the  details  of  the  war 
Jay  kept  himself  unusually  well  informed,  and 
his  private  agents  were  reputed  as  being,  with 
those  of  Generals  Clinton  and  Heath,  and  Gov- 

1  From  Gen.  McDougall,  Dec.  2,  1776,  Jay  MSS. 

2  From  Gen.  Troup,  July  22,  1777,  Jay  MSS. 

3  From  Gen.  Schuyler,  July  27,  1777,  Jay  MSS. 


64  JOHN  JAY. 

ernor  Livingston,  among  the  most  intelligent  in 
that  service.1  His  opinions,  then,  on  the  military 
measures  that  should  have  been  adopted  are 
worth  noting,  though  they  were  not  followed, 
and  are  quoted  by  Mahon  merely  on  account  of 
their  severity.  He  believed,2  and  urged  in  vain,3 
that  the  city  of  New  York  and  the  whole  of  the 
State  below*  the  mountains  should  be  desolated, 
the  Hudson  shallowed  at  Fort  Montgomery,  the 
southern  passes  fortified,  and  the  army  stationed 
in  the  mountains  on  the  east  of  the  river  with  a 
large  detachment  on  the  west.  Thus,  he  added, 
"the  State  would  be  absolutely  impregnable 
against  all  the  world  on  the  sea  side,  and  would 
have  nothing  to  fear  except  from  the  way  of  the 
lake." 

In  view  of  the  dangers  menacing  the  State,  the 
consideration  of  a  new  form  of  government  was 
postponed  till  August  1st,  when,  on  motion  of 
Gouverneur  Morris,  seconded  by  Mr.  Duer,  the 
Convention  appointed  a  committee  to  prepare 
and  report  a  plan  for  the  organization  of  a  new 
form  of  government.  Jay  was  made  chairman, 
and  his  associates  included  men  of  eminent  abil- 
ity :  Gouverneur  Morris,  Robert  R.  Livingston, 

1  Mag.  Am.  Hist.,  xi.  59. 

2  Force,  Am.  Archives,  5th  Ser.,  ii.   951.     To  G.   Morris, 
Oct.  6,  1776. 

3  To  Gen.  Schuyler,  Dec  11, 1776,  Jay  MSS.  ii.  17. 


REVOLUTIONARY  LEADER.  65 

William  Duer,  Abraham  and  Robert  Yates, 
General  Scott,  Colonel  Broome,  Mr.  Hobart, 
Colonel  De  Witt,  Samuel  Townsend,  William 
Smith,  and  Mr.  Wisner.  The  committee  was 
directed  to  report  on  August  16th.  The  Con- 
vention notified  Jay  and  two  of  his  associates 
on  the  Secret  Military  Committee  of  their  new 
appointment,  and  commanded  their  attendance. 
Jay  was  still  occupied  in  fortifying  West  Point, 
and  on  the  12th  the  Convention  summoned  them 
still  more  imperatively  unless  they  were  "  abso- 
lutely necessary  in  the  secret  Committee."  But 
General  Clinton  refused  to  let  them  go.  To- 
wards the  end  of  the  month  the  increasing  dan- 
ger from  excursions  of  the  enemy  forced  the 
Convention  to  move  from  White  Plains  to  Har- 
lem, where  they  sat  in  the  church,  and  after- 
ward met  successively  at  Kingsbridge,  at  Odell's, 
in  Philipse's  Manor,  then  at  Fishkill,  Poughkeep- 
sie,  and  Kingston. 

Outside  of  the  city  of  New  York  there  was 
no  overwhelming  popular  sentiment  for  inde- 
pendence in  that  State.  A  local  aristocracy  had 
been  founded  by  the  Dutch  East  India  Com- 
pany, and  had  been  fostered  by  the  English 
governors.  Many  of  the  first  families  of  the 
province  were  ardent  royalists,  connected  by 
blood  or  long  association  with  England ;  on  the 
large  manorial  estates  the  tenant  farmers  in- 


66  JOHN  JAY. 

dined  to  be  either  indifferent  to  politics  or  ad- 
herents of  their  landlords ;  while,  with  an  Eng- 
lish army  in  the  city  and  an  English  fleet  on 
the  river,  there  were  thousands  who  naturally 
deemed  neutrality  to  be  the  only  wisdom.  The 
upper  part  of  the  State  was  already  cut  off  from 
the  lower,  and  but  little  organized  treachery 
would  have  sufficed  to  place  the  whole  State 
at  the  mercy  of  the  British.  Meantime  the 
fate  of  the  continent  seemed  for  the  moment  to 
hinge  upon  New  York;  and  to  the  patriotic 
Convention  it  appeared  essential  to  the  common 
welfare  to  rid  the  State,  still  within  their  control, 
of  the  disaffected,  and  of  all  who  were  secretly 
but  none  the  less  actively  hostile.  On  motion 
of  Jay,  the  Convention  had  already,  on  June 
16th,  declared  guilty  of  treason,  with  the  pen- 
alty of  death,  all  persons  inhabiting  or  passing 
through  the  State  who  should  give  aid  or  com- 
fort to  the  enemy ; l  a  resolution  which,  in  spite 
of  its  harshness,  was  almost  identical  with  that 
adopted  about  a  week  later  by  the  Continental 
Congress.  Fortunately  the  law  may  be  said 
to  have  been  "  merely  buncombe,  meaning  noth- 
ing ; "  2  but  it  may  have  been  none  the  less  a 
useful  bit'  of  policy.  In  the  middle  of  June, 
when  Forbes,  the  gunsmith,  was  charged  with 

1  Journals  of  Provincial  Congress,  i.  526. 

2  Dawson,  Westchester  Co.  in  the  Am.  Bev.,  p.  210. 


REVOLUTIONARY  LEADER.  67 

conspiring  against  the  life  of  Washington,1  the 
late  convention  had  in  great  haste  appointed 
Livingston,  Jay,  and  Gouverneur  Morris,  as  a 
secret  committee  to  examine  disaffected  persons. 
When,  after  ten  days'  labor,  their  sessions  were 
interrupted  by  the  panic  that  was  caused  by 
Lord  Howe's  arriva],  there  were  twenty-seven 
prisoners  in  the  City  Hall,  and  forty-three  (in- 
cluding the  mayor)  in  the  new  jail.2  How 
many,  like  Thomas  Jones,  the  historian,  were 
examined  and  banished  for  disaffection,  is  un- 
known.3 This  was  the  last  that  is  heard  of  what 
was  known  as  the  committee  to  examine  disaf- 
fected persons. 

The  new  Convention  found  itself  fallen  upon 
days  still  more  evil.  Governor  Tryon,  from  his 
refuge  on  board  ship,  seemed  as  active  and  om- 
nipresent as  the  Prince  of  Evil;  "so  various, 
and,  I  may  add,  successful  have  been  the  arts 
of  Governor  Tryon  and  his  adherents,"  wrote 
Jay,  "  to  spread  the  seeds  of  disaffection  among 
us,  that  I  cannot  at  present  obtain  permission 
to  return  to  Congress."  4  On  September  26th,  a 
secret  committee  was  appointed,  on  motion  of 
Duer,  consisting  of  Jay  and  three,  subsequently 

1  Force,  Am.  Archives,  4th  Ser.,  fix.  1178. 

2  Dawson,  Westchester  Co.  in  the  Am.  Rev.,  p.  171,  note. 

3  Jones,  Hist,  of  New  York,  ii.  295. 

4  To  R.  Morris,  Oct.  6,  1776,  Jay  MSS. 


68  JOHN  JAY. 

six,  others.  It  was  termed  "a  committee  for 
inquiring  into,  detecting,  and  defeating  conspir- 
acies .  .  .  against  the  liberties  of  America," 
and  was  empowered  "  to  send  for  persons  and 
papers,  to  call  out  detachments  of  the  militia 
in  different  counties  for  suppressing  insurrec- 
tions, to  apprehend,  secure,  or  remove  persons 
whom  they  might  judge  dangerous  to  the  safety 
of  the  State,  to  make  drafts  on  the  treasury,  to 
enjoin  secrecy  upon  their  members  and  the  per- 
sons they  employed,  and  to  raise  and  officer  two 
hundred  and  twenty  men,  and  to  employ  them 
as  they  saw  fit."  This  committee  organized,  Oc- 
tober 8th,  at  Conner's  tavern  at  Fishkill,  with 
Duer  in  the  chair.  Their  minutes  for  1776  are 
in  the  handwriting  of  Jay,  who,  besides  acting 
as  secretary,  after  the  first  few  meetings  sat 
permanently  as  chairman.  Day  after  day  the 
local  county  committees  of  safety  sent  to  Fish- 
kill  batches  of  prisoners  under  guard,  men, 
women,  and  girls,  upon  charges  of  receiving 
protection  from  the  enemy,  corresponding  with 
the  enemy,  refusing  to  sign  the  association  or 
oath  of  allegiance  to  the  Congress,  or  simply 
with  disaffection  to  the  cause.  Those  who  sub- 
scribed to  the  association  were  usually  dis- 
missed; but  all  who  refused  were  subjected  to 
punishment,  confinement  in  jail,  transportation 
to  another  town  or  colony,  residence  at  Fishkill 


REVOLUTIONARY  LEADER. 


69 


under  parol  "to  remain  within  three  miles  of 
the  stone  church,"  or,  in  less  serious  cases,  to 
residence  at  home  under  parol  not  to  go  six 
miles  away.  Peter  Van  Schaack,  Jay's  friend 
and  classmate,  was  sent  with  his  brother  David 
to  Boston,  "  under  the  care  of  a  discreet  officer," 
at  "  their  own  expense  .  .  .  there  to  remain  on 
their  parol  of  honor,"  because  they  "  have  long 
maintained  an  equivocal  neutrality  in  the  pres- 
ent struggles  and  are  in  general  supposed  un- 
friendly to  the  American  cause."  l  One  lot  of 
prisoners  was  sent  to  New  Hampshire,  and  the 
committee  wrote  at  the  same  time  to  the  New 
Hampshire  Legislature,  desiring  that  such  as 
were  not  directed  to  be  confined,  and  not  in 
circumstances  to  maintain  themselves,  be  put  to 
labor  and  compelled  to  earn  their  subsistence.2 
One  James  McLaughlin,  for  being  "  notoriously 
disaffected,"  was  ordered  to  be  "  sent  to  Captain 
Hodges  of  the  Ship  of  War  Montgomery,  at 
Kingston,"  and  Captain  Hodges  was  directed 
"  to  keep  him  aboard  the  said  ship,  put  him  to 
such  labor  as  he  may  be  fit  for,  and  pay  him  as 
much  as  he  may  earn."  3  These  sentences  were 
often  ingenious,  but,  however  painless,  they  were 

1  Minutes,  Dec.  21,  1776. 

2  To  the  General  Court  of  New  Hampshire,  Oct.  31,  1776, 
Jay  MSS.  , 

8  Minutes,  Jan.  4, 1777. 


70  JOHN  JAY. 

unquestionably  severe  to  people  of  position ;  for 
all  were  so  worded  as  to  be  indefinite  in  dura- 
tion, "till  further  orders  from  this  Committee, 
or  the  Convention,  or  future  Legislature  of  this 
State."  Sometimes  Jay  and  Morris  were  the 
only  members  present,  but  the  committee  did 
not  on  that  account  neglect  its  business.  On 
February  27,  1777,  it  was  dissolved  by  order  of 
the  Convention,  and  in  its  stead  commissioners 
were  appointed  under  instructions  drawn  by 
their  predecessors. 

It  is,  perhaps,  not  surprising  that  Jay's  con- 
spicuous position  on  this  extra -legal  despotic 
tribunal  should  have  excited  against  him  the 
bitter  enmity  and  vituperation  of  the  royalists. 
"  In  imitation  of  the  infamous  Dudley,"  said  the 
"Royal  Gazette,"  he  "had  formed  and  enforced 
statutes  that  destroyed  every  species  of  private 
property  and  repose." 1  But  the  times  demanded 
prompt  and  stern  measures ;  under  military  rule, 
in  days  of  civil  war,  which  the  Revolution  was 
in  New  York,  suspected  traitors  are  generally 
shot  with  short  shrift ;  and  if  any  man  less  cool- 
headed  and  humane  than  Jay  had  been  in  con- 
trol, it -may  be  doubted  whether  imprisonment 
would  have  been  substituted  for  death.  "  Can 
we  subsist,  did  any  State  ever  subsist,  without 
exterminating  traitors  ?  "  wrote  Major  Hawley 

i  January  23,  1779. 


REVOLUTIONARY  LEADER.  71 

of  the  Massachusetts  Provincial  Congress  to 
Elbridge  Gerry.  "  It  is  amazingly  wonderful 
that,  having  no  capital  punishment  for  our  in- 
testine enemies,  we  have  not  been  utterly  ex- 
terminated before  now.  For  God's  sake,  let 
us  not  run  such  risks  a  day  longer."  In  New 
York  the  times  were  even  more  critical  than  in 
Massachusetts. 

Jay's  official  conduct  towards  the  royalists  was 
throughout  inspired  by  a  sense  of  duty  and  by 
rigid  impartiality.  "  In  the  course  of  the  pres- 
ent troubles,"  he  said,  referring  to  his  action  on 
the  Secret  Committee,  "  I  have  adhered  to  cer- 
tain fixed  principles,  and  faithfully  obeyed  their 
dictates  without  regarding  the  consequences  of 
my  conduct  to  my  friends,  my  family,  or  my- 
self." 2  The  uprightness  of  his  motives  was  in- 
deed admitted  by  those  who  suffered  most  from 
his  official  actions.  Van  Schaack,  the  friend 
whom  Jay  had  exiled  to  Boston  for  "neutral- 
ity," was  allowed  to  return  the  next  year  under 
parol.  His  wife,  who  was  dying,  longed  for  the 
sea  breezes  and  familiar  sights  of  New  York, 
but  Jay  refused  her  the  necessary  permission 
to  visit  the  city  merely,  and  return.  "I  never 
doubted  your  friendship,"  wrote  Van  Schaack 
in  some  natural  depression  of  spirits,  "yet  I 

1  Life  of  Elbridge  Gerry,  i.  207. 

2  To  Peter  Van  Schaack,  1782,  Life  of  Van  Schaack,  p.  301. 


72  JOHN  JAY. 

own  that  was  not  the  ground  upon  which  I  ex- 
pected to  succeed.  ...  As  a  man  I  knew  you 
would  espouse  the  petition,  if  public  considera- 
tions did  not  oppose  it ;  and  if  they  did,  I  knew 
no  friendship  could  prevail  on  you  to  do  it."  1 
"Though  as  an  independent  American,"  Jay 
declared  to  Van  Schaack  when  a  refugee  in 
England  in  1782,  "I  considered  all  who  were 
not  with  us,  and  you  among  the  rest,  as  against 
us ;  yet  be  assured  that  John  Jay  did  not  cease 
to  be  a  friend  to  Peter  Van  Schaack."  2  To 
Colonel  James  Delancey,  who  had  taken  a  royal 
commission  and  was  at  the  time  a  prisoner  of 
war  in  Hartford  jail,  Jay  wrote  recalling  his 
early  friendship :  "  How  far  your  situation  may 
be  comfortable  and  easy,  I  know  not ;  it  is  my 
wish  and  shall  be  my  endeavor  that  it  be  as 
much  se  as  may  be  consistent  with  the  interest 
of  the  great  cause  to  which  I  have  devoted  every- 
thing I  hold  dear  in  this  world ; "  and  he  sent 
him  a  hundred  pounds. 

Very  different  was  his  treatment  of  Colonel 
Peter  Delancey,  who  commanded  a  corps  of  law- 
less spirits  known  as  Delancey's  Boys,  the  cow- 
boys of  Cooper's  "  Spy,"  the  murderers  of  Colo- 
nel Greene.  "  When  peace  was  made,  Mr.  Jay 
was  desirous  to  allay  animosities,  and  he  readily 

1  Life  of  Peter  Van  Schaack,  p.  100. 

2  Ibid.,  p.  302. 


REVOLUTIONARY  LEADER. 


73 


renewed  his  acquaintance  with  the  royalists  who 
had  been  induced  by  principle  to  join  the  Eng- 
lish, but  he  refused  to  profess  any  regard  for 
the  perfidious  and  the  cruel.  Among  the  latter 
he  considered  Colonel  Delancey,  and  therefore 
when  he  met  him  in  London  he  would  not  know 
him."  1  Many  of  Jay's  relations  and  friends, 
indeed,  were  either  Tories  or  perplexed  as  to 
their  duty.  Many  of  the  Philipses,  a  family 
with  which  Mrs.  Jay  was  connected  by  descent, 
and  her  husband  by  adoption,  were  decided 
Tories  and  in  due  time  refugees.  A  friend,  Dr. 
Beverly  Robinson,  asked  Jay  to  take  care  of  his 
family  while  he  consulted  Colonel  Philipse  on 
his  proper  course  of  action.  "  The  information 
you  gave  me  when  I  was  before  the  Committee 
.  .  .  that  every  person,  without  exception,  must 
take  an  oath  of  allegiance  to  the  States  of  Amer- 
ica, or  go  with  their  families  to  the  King's  army, 
has  given  me  the  greatest  concern.  I  cannot 
as  yet  think  of  forfeiting  my  allegiance  to  the 
King,  and  I  am  unwilling  to  remove  myself  or 
family  from  this  place,  or  at  least  out  of  this 
country." 2  Some  years  later,  a  cousin,  Miss 
Rebecca  Bayard,  wrote  on  behalf  of  her  brother 
and  his  family  to  expedite  their  passage  to  New 
York.  They  had  a  pass  from  General  Gates 

1  Judge  William  Jay,  Jay  MSS. 

2  From  Dr.  Beverly  Robinson,  March  4,  1777,  Jay  MSS. 


74  JOHN  JAY. 

and  a  promise  from  Clinton,  then  governor,  but 
were  stopped  on  the  way.1  The  answer  was 
kind,  but  firm,  that  it  was  decided  to  pass  no 
persons  except  on  public  business.  Jay  even 
thought  fit  to  warn  Gouverneur  Morris :  "  Your 
enemies  talk  much  of  your  Tory  connections  in 
Philadelphia.  Take  care.  Do  not  expose  your- 
self to  calumny."  2 

By  the  end  of  December,  1776,  Westchester 
County  had  been  abandoned  to  the  British ;  the 
attack  on  Canada  had  failed,  and  Washington 
was  retreating  through  New  Jersey.  "  In  this 
moment  of  gloom  and  dismay,"  Jay  prepared  an 
address  from  the  Provincial  Convention  to  their 
constituents:  "What  are  the  terms  on  which 
you  are  promised  peace?  Have  you  heard  of 
any  except  absolute,  unconditional  obedience 
and  servile  submission?  .  .  .  And  why  should 
you  be  slaves  now,  having  been  freemen  ever 
since  the  country  was  settled?  ...  If  success 
crowns  your  efforts,  all  the  blessings  of  freedom 
shall  be  your  reward.  If  you  fall  in  the  contest, 
you  will  be  happy  with  God  in  Heaven."  The 
address  was  favorably  received,  and  Congress 
at  Philadelphia  ordered  it  to  be  translated  and 
printed  in  German  at  the  public  expense.  The 
meagre  minutes  of  the  Secret  Committee,  when 

1  From  Miss  Rebecca  Bayard,  June  28,  1778,  Jay  MSS. 

2  To  Gouv.  Morris,  Jan.,  1778. 


REVOLUTIONARY  LEADER. 


75 


read  between  the  lines,  suggest  an  unsuspected 
extent  of  vacillation  and  disaffection  throughout 
the  State,  especially  in  Westchester  County; 
and  a  late  writer,  whose  facts  are  as  often  exact 
as  his  comments  on  them  are  perverse,  has 
proved  that  the  farmers  no  less  than  the  gentry 
were  infinitely  perplexed  and  puzzled  by  the  con- 
flicting claims  of  the  King  and  the  State.1  In 
this  short  period  immediately  following  the  Dec- 
laration of  Independence,  Jay  showed  the  prompt- 
ness and  boldness  and  the  indefatigable,  unhesi- 
tating energy  which  the  critical  days  demanded. 
1  Dawson,  Westchester  Co.  in  the  American  Revolution, passim. 


CHAPTER  IV. 

A   CONSTRUCTIVE   STATESMAN. 

DURING  the  spring  of  1777  Jay  was  engaged 
on  the  committee  to  frame  a  new  form  of  gov- 
ernment. "For  this  purpose,"  said  his  son, 
"  he  retired  from  the  Convention  to  some  place 
in  the  country.  Upon  reflecting  on  the  char- 
acter and  feelings  of  the  Convention  he  thought 
it  prudent  to  omit  in  the  draft  several  provisions 
that  appeared  to  him  improvements,  and  after- 
wards to  propose  them  separately  as  amend- 
ments. ...  It  is  probable  that  the  Convention 
was  ultra-democratic,  for  I  have  heard  him  ob- 
serve that  another  turn  of  the  winch  would  have 
cracked  the  cord."  l 

The  Constitution  thus  formed  was  singularly 
expressive  of  the  conservative  instincts  of  the 
men  of  the  American  Revolution,  and  of  the 
unflinching  common  sense  characteristic  of  the 
Dutch-Huguenot  merchants  of  New  York,  of 
whom  Jay  was  a  natural  leader.  It  is  said,  in- 
deed, that  as  "  there  were  few  models  to  follow 

1  Judge  William  Jay,  Jay  MSS. 


A  CONSTRUCTIVE  STATESMAN.       11 

and  improve,  the  work  of  framing  a  funda- 
mental law  for  the  State  may  fairly  be  said  to 
have  been  undertaken  in  an  almost  unexplored 
field."  l  But  such  a  statement  needs  much  qual- 
ification before  it  ceases  to  be  misleading.  John 
Adams  had  an  explanation  of  the  origin  of  the 
New  York  Constitution  that  is  equally  inade- 
quate. He  wrote  in  his  old  age  to  Jefferson,2 
that,  according  to  Duane,  Jay  had  gone  home 
having  Adams's  letter  to  Wythe  "  in  his  pocket 
for  his  model  and  foundation."  But  the  letter  to 
Wythe  contained  only  the  most  meagre  sketch 
of  a  plan  of  government,  amounting  to  little 
more  than  the  suggestion  that  legislative,  exe- 
cutive, and  judicial  powers  should  be  balanced ; 
that  there  should  be  a  representative  assembly, 
a  council  chosen  by  the  assembly,  and  a  gov- 
ernor appointed  by  the  assembly  and  council ; 
the  governor  to  appoint  all  officers  by  and  with 
the  consent  of  the  council;  and  judges  to  hold 
office  during  good  behavior.3  The  letter  to 
Wythe  did  not  propose,  as  Adams  did  later,  as 
an  alternative,  the  election  of  the  governor  by 
the  people,  and  of  the  council  by  the  freehold- 
ers.4 The  fact  is,  that  the  Constitution  of  New 

1  J.  H.  Dougherty,  "  Constitutions  of  the  State  of  N.  Y.," 
Political  Science  Quarterly,  Sept.,  1888,  p.  490. 

2  Sept.  17,  1823,  John  Adams's  Works,  x.  410. 
8  Ibid.,  iv.  193. 

4  To  John  Penn,  Ibid.,  iv.  203. 


78  JOHN  JAY. 

York  was  a  special  adaptation  of  the  provincial 
government,  with  as  few  modifications  as  the 
circumstances  required,  and  those  chiefly  sug- 
gested by  the  history  of  the  province.1  In  the 
same  sense,  the  Federal  Constitution  is,  in  the 
words  of  Sir  Henry  Maine,  "  in  reality  a  version 
of  the  British  Constitution."  2 

"  We  have  a  government,  you  know,  to  form," 
Jay  wrote ;  "  and  God  knows  what  it  will  re- 
semble. Our  politicians,  like  some  guests  at  a 
feast,  are  perplexed  and  undetermined  which 
dish  to  prefer."  This  confusion  of  mind  was, 
perhaps,  reflected  by  the  choice  of  "  State  "  as 
the  title  of  the  new  government,  a  colorless 
word,  though  used  to  designate  the  government 
of  England  under  Cromwell.3 

"All  power  whatever  in  the  State  hath  re- 
verted to  the  people  thereof,"  is  the  recitation 
in  the  preamble ;  and  the  first  section  ordained 
that  no  authority  should  be  exercised  over  the 
people  of  the  state  but  such  as  should  be  derived 
from  and  granted  by  the  people ;  a  statement  of 
a  fact  and  its  logical  corollary.  Although,  nom- 
inally, the  old  Provincial  legislature  had  con- 
sisted only  of  a  single  house,  the  council  exer- 

1  R.  L.  Fowler,    "Constitution   of   the  Supreme  Court  of 
N.  Y.,"  Albany  Law  Journal,  Dec.  18,  1880,  p.  486. 

2  Maine,  Popular  Government,  p.  207. 

8  Fowler,  Albany  Law  Journal,  July  21,  1879,  p.  490  ;  Dec. 
18,  1880,  p.  486  n. 


A   CONSTRUCTIVE  STATESMAN.  79 

cised  powers  of  a  legislative  character,  and  this 
council,  rather  than  the  English  House  of  Lords, 
may  have  been  the  model  of  the  State  Senate.1 
As  has  been  well  said :  "  The  bicameral  legisla- 
ture, the  power  of  the  legislative  houses  to  be 
the  sole  judges  of  'their  own  memberships,  the 
method  of  choosing  the  presiding  officer  of  the 
more  popular  branch,  the  parliamentary  common 
law,  the  veto  on  legislation,  the  bill  of  rights, 
the  judicature,  the  jurisprudence,  and  the  fran- 
chises, were  all  Provincial  institutions,  continued 
after  the  Eevolution  by  virtue  of  the  Constitu- 
tion, and  because  they  were  associated  with  all 
that  was  wisest  and  best  in  the  previous  history 
of  New  York.  The  Revolution  was  not  a  war 
against  these  things  ;  it  was  a  war  for  these 
things  —  the  common  property  of  the  Anglican 
race."  2  Property  qualifications  were  accordingly 
required  as  before ;  electors  of  the  governor  and 
senators  must  enjoy  a  freehold  worth  ,£100 
(1250)  a  year;  electors  of  assemblymen  must 
have  a  freehold  worth  <£20  ($50),  or  a  tenancy 
worth  40s  (|5)  a  year,  and  must  pay  taxes.  It 
was  "  a  favorite  maxim  with  Mr.  Jay,  that  those 
who  own  the  country  ought  to  govern  it."  3  But 
before  condemning  such  a  maxim  and  its  appli- 

1  Albany  Law  Journal,  Dec.  18,  1880,  p.  487. 

2  Ibid.,  p.  488. 

3  Jay's  Jay,  i.  70. 


80  JOHN  JAY. 

cation  in  the  Constitution  as  "  aristocratic,"  as 
modern  speakers  are  prone  to  do,  it  is  well  to 
remember  that  in  1769  the  Province  of  New 
York  had  nearly  39,000  freeholders  and  bur- 
gesses entitled  to  vote,  a  number  in  proportion 
to  population  far  greater  than  existed  in  Eng- 
land before  the  Reform  Bill ;  that  there  was  as 
yet  no  organized  demand  for  the  franchise  by 
the  unqualified  masses,  and  that  before  the 
French  Revolution  an  absolute  democracy  was 
but  the  dream  of  a  theorist. 

As  to  the  powers  to  be  given  to  the  governor, 
experience  with  the  royal  governors  naturally 
suggested  a  policy  of  jealous  restriction ;- al- 
though the  success  of  the  prerogative  party  in 
the  past  had  been  due  not  so  much  to  guberna- 
torial power  as  to  the  occasional  subserviency 
of  the  provincial  Assembly,  which  body,  through 
.the  small  number  of  representatives,  not  over 
twenty-seven  at  the  time  of  the  Revolution,  and 
also  by  reason  of  the  protracted  sessions,  at  first 
septennial,  and  finally  indefinite  in  duration, 
had  naturally  soon  ceased  to  be  really  repre- 
sentative. The  governor,  who  was  appointed 
for  three  years,  a  term  to  which,  after  a  change 
to  a  two  )rears'  term,  New  York  returned  in  1874, 
was  held  in  check  by  two  specially  devised  coun- 
cils, the  Council  of  Appointment  and  the  Coun- 
cil of  Revision.  The  former  consisted  of  the 


A   CONSTRUCTIVE  STATESMAN.  81 

governor  and  one  senator,  chosen  annually  from 
each  of  the  five  great  districts  into  which  the 
State  was  divided  for  the  election  of  senators, 
and  had  the  appointment  of  practically  all  the 
officers  in  the  State,  except  those  of  the  towns. 
The  Council  of  Revision,  composed  of  the  gov- 
ernor, the  chancellor,  and  the  judges  of  the  Su- 
preme Court,  had  the  sole  power  of  veto,  subject 
to  reversal  by  a  two  thirds  vote  in  each  house. 
In  this  way  the  governor  became  little  more 
than  a  mere  figure-head,  without  responsibility 
for  either  appointments  or  vetoes ;  in  the  Coun- 
cil of  Appointment  partisanship  had  free  oppor- 
tunity to  confirm  its  corrupt  bargains ;  and  both 
councils  were  promptly  abolished  by  the  Con- 
stitutional Convention  of  1822,  which  gave  the 
sole  power  of  veto  to  the  governor.  Jay  him- 
self, when  governor,  had  reason,  as  will  appear, 
to  regret  his  suggestion  of  the  Council  of  Ap- 
pointment ;  which,  in  part,  may  have  originated 
in  the  old  Council  of  the  Province.  Had,  how- 
ever, Jay's  construction  of  the  language  of  the 
Constitution  been  followed,  by  which  the  gov- 
ernor had  sole  power  of  nomination,  these  evils 
would  have  been  avoided.  Against  the  Council 
of  Revision,  which  had  its  analogue  in  the  veto 
on  provincial  Acts  possessed  by  the  king  in 
Privy  Council,  no  such  objections  could  be 
raised,  and  its  abolition,  after  128  out  of  6,590 


82  JOHN  JAY. 

bills  had  been  vetoed,  was  due  chiefly  to  the 
growing  jealousy  on  the  part  of  the  democracy 
of  any  supreme  non-elective  body. 

Especially  conservative  were  the  framers  of 
the  Constitution  in  all  that  concerned  the  courts 
of  law  and  the  legal  customs  of  the  colony. 
Socage  tenure,  practically  allodial,  had  been 
introduced  under  the  Duke  of  York's  govern- 
ment a  century  before.  The  continuation  of  the 
Supreme  Court  by  mere  incidental  mention,  and 
of  trial  by  jury  "  in  all  cases  in  which  it  hath 
heretofore  been  used  in  the  colony  of  New 
York ;  "  and  the  clause  moved  in  convention  by 
Jay,  that  "  the  legislature  .  .  .  shall  at  no  time 
hereafter  institute  any  new  court  or  courts,  but 
such  as  shall  proceed  according  to  the  course  of 
the  common  law,"  were  reassertions  of  the  claims 
of  the  popular  party  in  opposition  to  the  pro-pre- 
rogative men  during  the  contest  over  the  estab- 
lishment of  a  Court  of  Equity  in  1734,  and  dur- 
ing the  later  debate  over  the  case  of  Cosby  v. 
Van  Dam,  when  the  justices  of  the  Supreme 
Court  attempted  to  hold  a  Court  of  Exchequer.1 
The  limitation  of  the  tenure  of  the  judges  "  dur- 
ing good  behavior,  or  until  they  shall  have 
respectively  attained  the  age  of  sixty  years," 
perpetuates  also  the  memory  of  the  controversy 
with  Lieutenant  Governor  Colden,  over  the  re- 
1  Albany  Law  Journal,  May  17,  1879,  p.  492. 


A  CONSTRUCTIVE  STATESMAN.  83 

tention  in  office  of  the  senile  Justice  Horsman- 
den.  The  only  new  court  created  was  the  Court 
of  Errors  and  Impeachment,  to  which  the  jus- 
tices of  the  Supreme  Court  were  nominated,  sit- 
ting for  the  occasion  with  the  senators.  In  form- 
ing this,  what  may  now  seem  extraordinary  tri- 
bunal, Jay  and  his  fellow-members  on  the  com- 
mittee had  doubtless  before  their  eyes  not  the 
House  of  Lords  with  its  special  judicial  powers, 
but  the  Council  of  the  Province  which  possessed 
supreme  appellate  jurisdiction.  Of  this  Council 
too,  as  of  the  new  Court  of  Errors,  the  judges 
and  chancellors  were  members,  with  power  to 
argue,  though  not  to  vote,  on  appeals  from  their 
own  judgments.1  Finally,  few  of  the  guaran- 
tees of  popular  rights  embodied  in  the  Constitu- 
tion had  a  lineage  of  less  than  a  hundred  years  ; 
for  most  of  them  are  found  in  the  "  Charter  of 
Liberty s  and  Privileges,"  the  first  act  of  the 
first  Assembly  of  the  Province,  in  1683,  which 
was  signed  by  the  governor,  though  disallowed 
by  the  king.  Towards  the  end  of  March,  1777, 
the  draft  of  the  new  Constitution,  in  Jay's  hand- 
writing, was  reported  by  Duane  from  the  com- 
mittee. 

After  the  dispiriting  battles  of  Rhode  Island, 
and  Washington's   masterly   retreat,  came   the 
mortifying  affair  at  Kip's  Bay,   the   hasty   re- 
1  Albany  Law  Journal,  Dec.  18,  1880,  p.  489. 


84  JOHN  JAY. 

treat  of  Putnam's  forces  from  New  York ;  then 
followed  the  battle  of  Harlem  Plains,  reviving 
the  spirit  of  the  American  troops,  and  that  of 
White  Plains,  and  Washington's  retreat  to  the 
Hudson  and  into  New  Jersey.  The  Convention, 
therefore,  was  transacting  its  business  under  the 
stress  of  unparalleled  disadvantages.  "  In  fact, 
such  was  the  alarming  state  of  affairs,  that  at 
certain  periods  the  Convention  was  literally 
driven  from  pillar  to  post,  while  it  had  alter- 
nately to  discharge  all  the  various  and  arduous 
duties  of  legislators,  soldiers,  negotiators,  com- 
mittees of  safety,  committees  of  ways  and  means, 
judges  and  jurors,  fathers  and  guardians  of  their 
own  families  flying  before  the  enemy,  and  then 
protectors  of  a  beloved  commonwealth."  1  Only 
a  few  days  before,  it  had  been  necessary  to  allow 
members  to  smoke  in  the  convention  chambers, 
"  to  prevent  bad  effects  from  the  disagreeable 
effluvia  from  the  jail  below."  2 

The  Constitution,  as  drafted,  was  discussed 
section  by  section,  and  passed  with  but  few  mod- 
ifications or  additions ;  and  of  these  Jay  moved 
a  large  proportion.  A  section  providing  for 
voting  by  ballot  was  struck  out  on  motion  of 
Gouverneur  Morris,  but  some  days  later  Jay  car- 
ried an  amendment  which  ordered  that  so  soon 

1  Proceedings  and  Debates  of  Const.  Conv.  0/1821,  p.  692- 

2  Journals  of  Prov.  Cong.,  etc.  i.  842. 


A   CONSTRUCTIVE  STATESMAN.  85 

as  practicable  after  the  war  all  elections  should 
be  by  ballot,  though  the  legislature  might  at 
any  time  after  a  fair  trial  renew  the  practice  of 
viva  voce  voting.1  It  was  under  this  clause  that 
the  first  law  was  framed  in  New  York,  authoriz- 
ing a  secret  ballot  in  1778,  and  so  successful  did 
it  prove  that  nine  years  later  it  was  extended  to 
all  elections  of  state  officers.  Such  a  measure 
was  certainly  never  proposed  in  the  interest  of 
aristocracy ! 

The  most  prolonged  debate  of  the  session  was 
upon  the  question  of  religious  toleration,  over 
the  important  clause  that  "  the  free  toleration  of 
religious  profession  and  worship  without  dimi- 
nution or  preference  shall  forever  hereafter  be 
allowed  within  the  State  to  all  mankind."  This 
charter  of  freedom  of  conscience  was  one  of  the 
priceless  heirlooms  bequeathed  to  New  York  by 
New  Netherland,  which,  almost  alone  among  the 
colonies,  had  never  listened  to  the  denunciations 
of  fanaticism,  had  never  lighted  the  fires  of  per- 
secution. In  Jay  the  old  Huguenot  blood  still 
ran  hotly,  thrilling  him  with  memories  of  Pierre 
Jay  driven  from  La  Rochelle,  of  Bayards  and 
Philmses  seeking  refuge  in  Holland  and  Bohe- 
mia iroin  the  long  arm  of  the  Papacy.  The 
power  of  the  Church  of  Eome  he  knew  and 
feared  ;  he  urged,  accordingly,  amendment  after 
1  Journals  of  Prov.  Cong.,L8Q6. 


86  JOHN  JAY. 

amendment,  to  except  Roman  Catholics  till  they 
should  abjure  the  authority  of  the  Pope  to 
absolve  citizens  from  their  allegiance  and  to 
grant  spiritual  absolution.  The  result  of  his 
objections  was  the  adoption  of  a  proviso,  "  that 
the  liberty  of  conscience  hereby  granted  shall 
not  be  so  construed  as  to  excuse  acts  of  licen- 
tiousness or  justify  practices  inconsistent  with 
the  safety  of  the  State." l  When  the  question 
of  naturalization  came  up  for  discussion,  Jay 
renewed  the  same  fight,  and  secured  the  amend- 
ment, sufficient  for  public  security  though  less 
stringent  than  he  desired,  that  before  naturaliza- 
tion all  persons  shall  "  abjure  and  renounce  all 
allegiance  to  all  and  every  foreign  king,  prince, 
potentate,  and  state,  in  all  matters  ecclesiastical 
as  well  as  civil."  2  The  wording  of  this  clause 
brings  out,  perhaps,  Jay's  motive  in  this  contro- 
versy. With  him  it  was  not  a  religious  but  a 
political  question.  It  was  not  Romanism  as  a 
religion  that  he  feared,  but  Romanism  as  an 
imperium  in  imperio.  That  he  was  not  a  bigot 
was  shown  clearly  when  in  July,  1775,  the  Pro- 
vincial Congress  forwarded  to  their  delegates  in 
the  Continental  Congress  a  "  plan  of  reconcilia- 
tion," protesting,  among  other  things,  "  against 
the  indulgence  and  establishment  of  popery  [by 

1  Journals  ofProv.  Cong.,  i.  860. 

2  Ibid.,  i.  846. 


A  CONSTRUCTIVE  STATESMAN.      87 

the  Quebec  Act],  all  along  their  interior  con- 
fines." To  the  answer  of  the  delegates  to  the 
Provincial  Congress  Jay  added  this  significant 
clause  :  that  they  thought  best  to  make  no  refer- 
ence to  the  religious  article,  preferring  to  bury 
"  all  disputes  on  ecclesiastical  points,  which  have 
for  ages  had  no  other  tendency  than  that  of 
banishing  peace  and  charity  from  the  world."  l 

The  Council  of  Appointment  was  constituted 
on  Jay's  motion  ;  but  though  the  credit  or  mis- 
fortune of  its  creation  is  attributed  to  him,  the 
measure  was  really  a  compromise,  the  extremists 
on  one  side  proposing  that  the  governor  should 
have  sole  power  of  appointment,  —  a  sound  prin- 
ciple, but  obnoxious  to  the  democratic  Conven- 
tion, —  while  those  on  the  other  side  insisted 
upon  confirmation  by  the  Legislature.2 

That  acts  of  attainder  (which  were  limited  to 
offenses  committed  before  the  termination  of  the 
war)  should  not  work  corruption  of  blood  ;  and 
that  the  State  should  assume  the  protection  of 
the  Indians  within  its  boundaries,  were  humane 
provisions  due  to  Jay.  And  just  before  the  final 
vote,  he  moved  a  further  clause  that  was  adopted, 
the  significance  of  which  has  been  explained,3 

1  Theo.  Roosevelt,  Life  of  Gouverneur  Morris,  pp.  42,  43. 

2  Journals  ofProv.  Cong.,  i.  377 ;   To  R.  R.  Livingston  and 
Gouverneur  Morris,  April  29,  1777,  Jay  MSS. 

3  Supra,  p.  82. 


88  JOHN  JAY. 

prohibiting  the  institution  of  any  court  "but 
such  as  shall  proceed  according  to  the  course  of 
the  common  law."  l 

On  April  17,  1777,  his  mother  died,  and  Jay 
hastened  to  Fishkill  to  attend  the  funeral  and 
comfort  the  family.  During  his  absence,  on  a 
Sunday,  the  Constitution  was  adopted ;  it  was 
hurriedly  printed,  and  published  April  22d  by 
being  read  from  a  platform  in  front  of  the  court- 
house at  Kingston.  Like  all  the  early  constitu- 
tions, except  that  of  Massachusetts,  it  was  never 
submitted  to  the  people ;  the  election  of  dele- 
gates for  the  express  purpose  of  framing  a  con- 
stitution being  deemed  a  ratification  in  advance. 
Jay  was  at  once  placed  on  a  committee  for  or- 
ganizing the  new  form  of  government.  Under 
the  plan  of  organization,  fifteen  persons,  includ- 
ing Jay,  were  created  a  Council  of  Safety  "  with 
all  the  powers  necessary  for  the  safety  and  pre- 
servation of  the  State,  until  a  meeting  of  the 
Legislature,"  and  with  instructions  to  admin- 
ister the  oath  of  office  to  the  governor,  when 
elected.  Robert  E.  Livingston  was  appointed 
chancellor,  John  Jay  chief  justice,  and  others 
were  appointed  judges,  sheriffs,  and  clerks,  to 
act  pro  ternpore,  till  the  institution  of  the  new 
government,  a  period,  as  it  happened,  of  some 
six  months.  An  act  of  grace  was  drafted  by 

1  Journals  of  Prov.  Cong.,  i.  882. 


A  CONSTRUCTIVE  STATESMAN. 


89 


Jay  in  committee,  granting  full  pardon  to  any 
delinquent  or  traitor  on  his  producing  before 
the  Council  of  Safety  or  the  governor  a  certi- 
ficate of  subscription  to  the  oath  of  allegiance. 
On  further  motion  of  Jay,  the  resignation  by 
General  Clinton  of  his  command  of  the  militia 
was  not  accepted.  The  thanks  of  the  Conven- 
tion were  then  voted  to  the  New  York  delegates 
in  Congress  ;  and  the  Convention  dissolved,  May 
13th,  ordering  the  Council  of  Safety  to  assemble 
at  the  same  place  "  to-morrow  morning  at  nine 
o'clock."  l  This  was  the  close  of  that  memora- 
ble Convention,  whose  deliberations,  said  Chan- 
cellor Kent,  "  were  conducted  under  the  excite- 
ment of  great  public  anxiety  and  constant  alarm ; 
and  that  venerable  instrument,  which  was  des- 
tined to  be  our  guardian  and  pride  for  upwards 
of  forty  years,  was  produced  amidst  the  hurry 
and  tumult  of  arms."  2  In  all  this  turmoil  Jay 
and  his  fellow-framers  of  the  Constitution  were 
calm  and  collected ;  inspired  by  the  practical, 
precedent-regarding  spirit  of  the  common  law, 
they  retained  all  that  experience  had  approved, 
and  adjusted  what  they  added  of  new  to  har- 
monize with  the  old ;  therefore  it  was  that  the 
Constitution  remained  in  force  for  over  forty 

1  Journals  of  Prov.  Cong.,  i.  931. 

2  Kent,    Discourse   before   the   N.    Y.   Hist.   Soc.,  Dec.  6, 
1828,  p.  5. 


90  JOHN  JAY. 

years,  and  then,  "  with  some  minor  modifica- 
tions, the  extension  of  suffrage  and  the  con- 
centration of  more  power  in  the  governor,  .  .  . 
continued  substantially  unchanged  until  1846." 
Subsequent  changes  have  been  in  the  direction 
of  limiting  the  power  of  the  legislature,  and 
providing  for  the  new  problems  presented  by 
the  sudden  development  of  cities.  One  obvious 
defect  was  the  failure  to  make  provision  for 
constitutional  amendment.1  Many  things  were 
omitted,  which  Jay  especially  regretted:  a  di- 
rection that  all  officers  should  swear  allegiance ; 
a  prohibition  of  domestic  slavery ;  and  a  clause 
"  for  the  support  and  encouragement  of  litera- 
ture." 2  "I  wish,"  he  wrote  to  Morris,  April 
14,  1778,  "you  would  write  and  publish  a  few 
civil  things  on  our  Constitution,  censuring,  how- 
ever, an  omission  in  not  restraining  the  Council 
of  Appointment  from  granting  offices  to  them- 
selves." 3  In  spite  of  defects,  however,  the  Con- 
stitution received  general  praise.  "  I  believed 
it  would  do  very  well,"  4  was  John  Adams's  cold 
expression,  which  meant,  however,  much  more 
than  it  said.  "  Our  constitution,"  Jay  wrote  to 
Gansevoort,  "  is  universally  approved,  even  in 
New  England,  where  few  New  York  productions 

1  Dougherty,  Pol  Science  Quart.,  Sept.,  1888,  p.  494  et passim. 

2  Jay's  Jay,  i.  69.  8  Jay  MSS. 
4  John  Adams's  Works,  x.  410. 


A  CONSTRUCTIVE  STATESMAN.      91 

have  credit.  But  unless  the  government  be  com- 
mitted to  proper  hands  it  will  be  weak  and  un- 
stable at  home  and  contemptible  abroad."  It 
was  at  that  time  "  generally  regarded  as  the 
most  excellent  of  all  the  American  constitu- 
tions," 2  of  which  it  was  the  fifth  to  be  adopted  ; 
and  by  a  writer  whose  knowledge  of  the  early 
constitutional  history  of  the  country  gives  weight 
to  any  statement  of  his,  however  unsusceptible 
of  proof,  it  is  asserted  to  have  been  essentially 
the  model  of  the  national  government  under 
which  we  live.  3 

For  the  next  six  months  the  government  of 
the  State  was  in  the  hands  of  the  Council  of 
Safety.  They  directed  the  release  or  confine- 
ment of  suspected  persons ;  regulated  the  pris- 
ons ;  conferred  with  the  Continental  Congress  on 
measures  of  defense  ;  and  provided  for  the  com- 
ing elections.  Jay  prepared  a  commission  for 
holding  courts  of  oyer  and  terminer ;  reported 
from  a  committee  rules  for  the  reorganization 
of  the  Fleet  Prison  ;  drafted  letters  to  the  New 
York  delegates  at  Philadelphia  concerning  the 
revolt  in  the  northeast,  and  was  forthwith  added 
to  the  Committee  on  Intelligence  to  discuss  with 

1  June  5,  1777,  Jay  MSS. 

2  John   Alex.  Jameson,    Constitutional  Convention,  4th  ed., 
§152. 

8  John  Austin  Stevens,  Mag.  Am.  Hist.,  July,  1878,  p.  387. 


92  JOHN  JAY. 

General  Schuyler  at  headquarters  the  measures 
requisite  for  its  suppression.1 

Jay  was  asked  more  than  once  to  become  a 
candidate  for  governor  ;  but  he  steadily  refused, 
for  the  reasons  which  he  stated  as  early  as  May 
16th  :  "  That  the  office  of  the  first  magistrate  of 
this  State  will  be  more  respectable  as  well  as  more 
lucrative,  and  consequently  more  desirable  than 
the  place  I  now  fill,  is  very  apparent.  But  ... 
my  object  in  the  course  of  the  present  great  con- 
test neither  has  been,  nor  will  be,  either  rank 
or  money.  I  am  persuaded  that  I  can  be  more 
useful  to  the  State  in  the  office  I  now  hold  than 
in  the  one  alluded  to,  and  therefore  think  it 
my  duty  to  continue  in  it."  General  Schuyler 
seems  to  have  been  the  candidate  of  the  Council 
of  Safety,  as  he  certainly  was  Jay's  ;  but  on 
July  9th  the  people  elected  the  burly,  magnetic 
less  aristocratic  Clinton.  "  I  hope,"  Schuyler 
magnanimously  wrote  to  Jay,  "  General  Clinton's 
having  the  chair  of  government  will  not  cause 
any  divisions  amongst  the  friends  of  America, 
although  his  family  and  connections  do  not  en- 
title him  to  so  distinguished  a  predominance ; 
yet  he  is  virtuous  and  loves  his  country,  has 
abilities  and  is  brave,  and  I  hope  he  will  ex- 
perience from  every  patriot  what  I  am  resolved 
he  shall  from  me,  support,  countenance,  and  com- 
1  Journals  of  the  Prov-  Cong.,  i.  948-1019. 


A   CONSTRUCTIVE   STATESMAN.  93 

fort."  l  All  New  York  at  this  time,  outside  the 
British  pale,  was  Whig ;  but,  as  this  letter  shows, 
there  was  already  a  divergence  between  the 
more  democratic  and  the  less  democratic  Whigs, 
though  all  were  equally  patriotic  and  republican. 
The  Council  at  once  resolved  that  they  were  not 
"  justified  in  holding  and  exercising  any  powers 
vested  in  them  longer  than  is  necessary,"  and 
requested  General  Clinton  to  appear  and  take 
the  oath  of  office.  But  the  governor  elect  was 
holding  Fort  Montgomery  and  expecting  a  sud- 
den attack.  "  The  enemy  have  opened  the  ball 
in  every  quarter,"  wrote  Schuyler  to  Jay  a  few 
days  earlier.  "  It  is  pretty  certain  that  they  will 
pay  us  a  visit  from  the  westward  as  well  as  from 
the  north.  I  am  in  much  pain  about  Ticonde- 
roga ;  little  or  nothing  has  been  done  there  this 
Spring."  2  The  evacuation  of  Ticonderoga  fol- 
lowed swiftly.  "I  dare  not  speak  my  senti- 
ments," wrote  Schuyler  again,  July  14th,  from 
Fort  Edward.  "In  the  Council  of  Safety,  to 
your  secrecy,  I  can  confide  them.  They  are, 
that  it  was  an  ill-judged  measure,  not  warranted 
by  necessity,  and  carried  into  execution  with  a 
precipitation  that  could  not  fail  of  creating  the 
greatest  panic  in  our  troops  and  inspiriting  the 

1  July  14,  1777,  Jay  MSS. 

2  June  30,  1777,  Jay  MSS. 


94  JOHN  JAY. 

enemy."1  For  the  moment,  as  Burgoyne  con- 
tinued his  southward  march,  the  war  was  closed 
indeed.  Jay's  family  was  alarmed,  especially  his 
father.  "General  Sullivan  with  2,000  Conti- 
nental troops  are  now  encamped  in  the  town  of 
Fishkill,"  is  the  news  sent  by  Frederick  Jay, 
July  18th.  "  This  affair  makes  the  old  gentle- 
man imagine  that  the  enemy  will  certainly  at- 
tempt the  river.  I  could  wish  he  was  as  easy 
about  the  matter  as  myself."  2  Quite  as  easily, 
but  less  cynically,  Mrs.  Jay  had  described  just 
such  an  alarm  in  March,  at  Peekskill :  "  This 
very  moment  the  doctor  came  into  the  room, 
his  looks  bespeaking  the  utmost  discomposure. 
'  Bad  news,  Mrs.  Jay.'  '  Aye,  doctor ;  what 
now  ? '  '  The  regulars,  madam,  are  landed  at 
Peekskill ;  my  own  and  other  wagons  are  pressed 
to  go  instantly  down  to  remove  the  stores.' 
Wherever  I  am,  I  think  there  are  alarms ;  how- 
ever, I  am  determined  to  remember  your  maxim : 
prepare  for  the  worst  and  hope  the  best."  3 

The  Legislature  was  summoned  by  the  Coun- 
cil to  convene  at  Kingston  on  the  1st  of  August. 
It  is  curious  to  notice,  in  the  light  of  subsequent 
history,  that  Jay  "  casually  hinted  at  holding 
the  first  session  of  the  Legislature  at  Albany," 

1  Jay  MSS. 

2  To  John  Jay,  March  23,  1777,  Jay  MSS. 
8  Ibid. 


A    CONSTRUCTIVE  STATESMAN.  95 

but  found  "a  general  disinclination  to  it." 
"  Some  object,"  he  wrote  to  Schuyler,  "  to  the 
expense  of  living  there,  as  most  intolerable,  and 
others  say  that,  should  Albany  succeed  in  having 
both  the  great  officers,  the  next  step  will  be  to 
make  it  the  capital  of  the  State."  1  On  July 
31st,  the  day  before  that  set  for  the  meeting  of 
the  Legislature,  General  Clinton,  in  the  pres- 
ence of  the  Council  of  Safety,  took  the  oath  of 
office,  "clothed  in  the  uniform  of  the  service, 
and  sword  in  hand,  standing  011  the  top  of  a  bar- 
rel in  front  of  the  Court-house  in  Kingston."  2 

A  hurried  expedition  was  made  by  Jay  with 
Gouverneur  Morris,  by  order  of  the  Council,  to 
the  headquarters  of  Washington,  to  consult  about 
the  means  of  defense,  and  to  urge  the  necessity 
of  providing  garrisons  for  the  forts  in  the  High- 
lands, as  the  term  of  the  militia  stationed  there 
was  about  to  expire.  Soon  after  his  return,  on 
September  9th,  he  opened  the  first  session  of  the 
Supreme  Court  of  the  State  at  Kingston.  From 
a  letter  of  Jay's,  it  appears  that  this  was  not  the 
first  official  function  of  the  judicature,  since  the 
adoption  of  the  constitution.  "  A  court  is  di- 
rected to  be  held  in  Dutchess,"  he  wrote  to  Mrs. 
Jay,  June  6th,  "  and  I  expect  the  like  order  will 
be  given  for  the  other  counties,  so  that  should 

1  June  20,  1777,  Jay  MSS. 

2  John  A.  Stevens,  Mag.  Am.  Hist.,  July,  1878,  p.  387. 


96  JOHN  JAY. 

you  not  hear  from  me  so  frequently  ascribe  it  to 
my  absence  from  here."  1  The  Supreme  Court, 
as  has  been  said,  was  merely  the  old  provincial 
Supreme  Court  continued.  "The  minutes  of 
this  term  appear  in  the  same  old  volume  in  use 
under  the  crown.  Between  the  minutes  for 
April  term,  1776,  and  those  for  September  term, 
1777,  are  a  few  blank  leaves,  but  there  is  no 
written  indication  of  the  change  of  government 
that  had  taken  place.  Indeed,  it  would  be  im- 
possible to  learn  from  the  records  of  the  Sep- 
tember term  what  had  happened  in  the  interval, 
were  it  not  for  the  title  of  the  first  cause  on  the 
docket :  the  party  plaintiff  is  4  The  People  of 
the  State  of  New  York,'  and  110  longer  '  Dom- 
inus  Kex.'  In  all  other  respects  the  minutes 
disclose  no  immediate  change  in  the  procedure, 
practice,  or  administration  of  the  Court."  2  At 
Kingston,  September  9th,  Jay,  as  chief  justice 
pro  tempore?  delivered  an  address  to  the  grand 
jury  of  Ulster  County,  which  for  many  years 
afterward  was  regarded  as  one  of  the  classics  of 
the  Kevolution.  "It  affords  me,  gentlemen," 
was  the  impressive  opening,  "  very  sensible  pleas- 
ure to  congratulate  you  on  the  dawn  of  that 

1  Jay  MSS. 

2  Fowler,  "  Const,  of  the  Supreme   Court,"  Alb.  Law  Jour- 
nal. 

3  His  formal  commission  as  chief  justice  under  the  Consti- 
tution was  not  made  out  till  a  few  days  later. 


A   CONSTRUCTIVE  STATESMAN.  97 

free,  mild,  and  equal  government  which  now  be- 
gins to  break  and  rise  from  amid  those  clouds  of 
anarchy,  confusion,  and  licentiousness  which  the 
arbitrary  and  violent  conduct  of  Great  Britain 
had  spread,  in  greater  or  less  degree,  through- 
out this  and  the  other  American  States.  .  .  . 
Vice,  ignorance,  and  want  of  vigilance  will  be 
the  only  enemies  able  to  destroy  it.  Against 
these  be  forever  jealous."  At  that  moment,  Bur- 
goyne  was  approaching  Albany  and  had  already 
reached  the  Hudson,  while  New  York  city  and 
the  whole  southern  tier  of  counties,  New  York, 
Westchester,  Richmond,  and  Long  Island,  the 
richest  and  most  populous  in  the  State,  were  in 
almost  undisturbed  possession  of  England.  The 
extreme  northeastern  counties,  Gloucester  and 
Cumberland,  also,  were  in  half-declared  revolt. 
Within  the  British  lines  Judge  Ludlow  still  ex- 
ercised the  jurisdiction  of  the  Supreme  Court  of 
the  Province ;  and  these  two  governments  con- 
tinued till  the  evacution,  November  25,  1783. 
It  naturally  followed  that  the  Supreme  Court 
of  the  State,  during  Jay's  term  as  chief  jus- 
tice, had  little  important  business.  During  the 
Revolution  the  court  never  sat  in  bane.  As, 
moreover,  no  reports  are  published  of  the  deci- 
sions for  the  first  twenty-two  years  of  its  exist- 
ence, scarcely  anything  can  be  safely  said  of  Jay 
as  chief  justice  of  New  York. 


98  JOHN  JAY. 

"I  am  now  engaged,"  he  wrote  to  Morris, 
April  29, 1778,  "  in  the  most  disagreeable  part  of 
my  duty,  trying  criminals.  They  multiply  exceed- 
ingly. Robberies  become  frequent ;  the  woods  af- 
ford them  shelter,  and  the  Tories  food.  Punish- 
ment must  of  course  become  certain,  and  mercy 
dormant,  —  a  harsh  system,  repugnant  to  my 
feelings,  but  nevertheless  necessary."  1  In  those 
days  the  inconveniences  of  life  were  many  even 
for  a  judge  at  Albany.  "  Had  it  not  been  for 
fish,"  according  to  Jay,  "  the  people  of  this  town 
would  have  suffered  for  want  of  food,  occasioned 
by  the  refusal  of  the  farmers  to  sell  at  the  stip- 
ulated prices.  The  few  goods  there  were  in  the 
town  have  disappeared.  I  have  tried,  but  have 
not  been  able,  to  get  a  pair  of  shoes  made."  2  In 
the  summer  he  seems  to  have  been  much  with 
the  governor,  assisting  him  in  official  corre- 
spondence, and  was  constantly  applied  to,  but  in 
vain,  to  exert  his  influence  with  him  in  behalf  of 
Tories  or  their  friends  who  wished  passports  to 
New  York.  In  the  autumn  Jay  retired  to  the 
farm  at  Fishkill  for  a  little  much  needed  rest. 
"I  have  not  been  without  the  bounds  of  the 
farm  since  my  return  to  it,"  he  wrote  his  wife  in 
August,  "and  to  tell  you  the  truth,  were  you 
and  our  little  boy  here,  I  should  not  even  wish 

1  Jay's  Jay,  ii.  23. 

2  To  Mrs.  Jay,  April  9,  1778,  Jay  MSS. 


A   CONSTRUCTIVE  STATESMAN.  99 

to  leave  it  this  year,  provided  it  would  be  all 
that  time  exempted  from  the  visitation  of  both 
armies.  This  respite  from  care  and  business  is 
extremely  grateful.  ...  Its  duration,  however, 
will  probably  be  short,  as  the  number  of  per- 
sons charged  with  capital  offenses  now  in  con- 
finement requires  that  courts  for  their  trial  be 
speedily  held.  Delays  in  punishing  crimes  en- 
courage the  commission  of  crime.  The  more 
certain  and  speedy  the  punishment,  the  fewer 
will  be  the  objects."  l  While  still  at  Fishkill 
Mr.  Jay  received  General  Washington,  whom 
his  father  had  entertained  three  years  before  at 
Rye,  and  with  whom  in  the  service  of  the  State 
he  had  himself  conferred  frequently  on  military 
matters.  The  object  of  the  visit  was  to  discuss 
a  plan,  then  before  Congress,  for  the  invasion  of 
Canada  with  the  aid  of  France,  and  both  agreed 
in  disapproving  it.  Here,  too,  the  chief  justice 
probably  wrote  the  paper,  signed  "  A  Freehold- 
er," on  the  abuses  of  impressment  by  the  mili- 
tary, "without  any  law,  but  that  of  the  necessity 
of  the  case,  which  cloaks  as  many  sins  in  politics 
as  charity  is  said  to  do  in  religion."  "These 
impresses,"  was  the  conclusion,  "  may,  I  think, 
easily  be  so  regulated  by  laws,  as  to  relieve  the 
inhabitants  from  reasonable  cause  of  complaint, 
and  yet  not  retard  or  embarrass  the  service." 
1  August  3,  1778,  Jay  MSS. 


100  JOHN  JAY. 

As  chief  justice,  Jay  was  ex  officio  a  member 
of  the  Council  of  Revision,  which  sat  from  time 
to  time  at  Poughkeepsie,  and  which  this  spring^ 
on  objections  drafted  by  him,  vetoed  many  anti- 
tory  bills,  and  bills  perpetuating  revolutionary 
methods.  The  first  of  these  bills  was  "  an  act 
requiring  all  persons  holding  offices  or  places 
under  the  government  of  this  State  to  take  the 
oaths  herein  prescribed  and  directed ; "  and  a 
new  law  was  subsequently  passed  so  as  to  avoid 
Jay's  objections.1  A  number  of  members  of 
the  Legislature  had  formed  themselves  into  a 
Council  of  Safety,  and  declared  an  embargo 
against  the  exportation  of  flour  and  grain  from 
the  State.  A  bill  to  continue  this  embargo 
was  vetoed,  because  it  recognized  the  Council  of 
Safety,  "  when  in  fact  all  Legislative  power  is 
to  be  exercised  by  the  immediate  representa- 
tives of  the  people  in  Senate  and  Assembly  in 
the  mode  prescribed  by  the  Constitution;  for 
though  the  People  of  this  State  have,  hereto- 
fore, been  under  a  necessity  of  delegating  their 
authority  to  Provincial  Congresses  and  Con- 
ventions, and  of  being  governed  by  them,  and 
Councils,  and  Committees  of  Safety  by  them 
from  time  to  time  appointed,  yet  .  .  .  these 
were  mere  temporary  expedients  to  supply  the 

1  Feb.  3,  1778,  Alfred  B.  Street,  The  Council  of  Bevision, 
p.  201. 


A  CONSTRUCTIVE  STATESMAN.     101 

want  of  a  more  regular  government,  and  to 
cease  when  that  prescribed  by  the  Constitution 
should  take  place."  1  March  25th,  the  Council 
vetoed  a  sweeping  bill  to  disfranchise  and  dis- 
qualify for  office  any  one  who  since  July  9, 
1776,  had  before  any  committee  of  safety,  or 
conspiracy,  acknowledged  the  sovereignty  of 
Great  Britain,  or  denied  the  authority  of  this 
or  any  former  government  of  this  State,  or 
given  aid  or  comfort  to  the  enemy,  etc.  The 
reasoning  of  the  Council  was  strong  and  con- 
cise: the  bill  is  unconstitutional,  "because  the 
Constitution  of  this  State  hath  expressly  or- 
dained that  every  elector,  before  he  is  admitted 
to  vote,  shall,  if  required  .  .  .  take  an  oath  .  .  . 
of  allegiance  to  the  State,  from  whence  ...  it 
clearly  follows  that  every  elector  who  will  take 
such  oath,  has  a  constitutional  right  to  be  ad- 
mitted to  such  vote,  and  therefore  that  the  Leg- 
islature have  no  power  to  deprive  him  thereof, 
more  especially  for  acts  by  him  done  prior  to 
the  date  of  the  said  Constitution,  which  was  the 
20th  day  of  April,  1777,  of  which  acts  the  Con- 
vention, by  whom  that  Constitution  was  made, 
had  ample  cognizance."  ..."  Because  the  said 
disqualifications  .  .  .  savor  too  much  of  resent- 
ment and  revenge  to  be  consistent  with  the  dig- 

1  Feb.  20,  1778,  Street,  The  Council  of  Eevision,  pp.  203, 
204.     The  bill  passed  finally  with  slight  amendments. 


102  JOHN  JAY. 

nity  or  good  of  a  free  people.  Because  the  said 
disqualifications  (supposing  them  to  be  consti- 
tutional and  proper)  are  not  limited  to  take 
place  only  on  the  conviction  of  the  offenders  in 
due  course  of  law."  l  Such,  however,  was  the 
intensity  of  party  feeling,  that  this  bill  was 
passed  over  the  veto. 

The  same  day  the  Council  vetoed  a  bill  "  for 
raising  moneys,"  by  which  traders  and  manufact- 
urers were  to  be  taxed  £50  on  every  £1,000 
gained  in  their  occupations  since  September  12, 
1776.  This  was  held  unconstitutional,  as  violat- 
ing "the  equal  right  to  life,  liberty,  and  prop- 
erty," because  "  the  public  good  requires  that 
commerce  and  manufactures  be  encouraged," 
and  because  it  is  "  repugnant  to  every  idea  of 
justice  thus,  without  any  open  charge  or  accu- 
sation of  offense,  and  without  trial,  indiscrimi- 
nately to  subject  numerous  bodies  of  free  citi- 
zens, distinguished  only  by  the  appellation  of 
traders  or  manufacturers,  to  large  penalties  not 
incurred  on  conviction  of  disobedience  to  any 
known  law,  and  couched  under  the  specious 
name  of  a  tax."  2  As  late  as  November  5th,  a 
similar  bill  was  vetoed,  giving  the  assessors  au- 
thority to  tax  at  discretion  those  who,  "  taking 
advantage  of  the  necessities  of  their  country, 

1  Street,  The  Council  of  Revision,  pp.  210,  211. 

2  Ibid.,  pp.  212,  213. 


A   CONSTRUCTIVE  STATES-MAN.  103 

have,  in  prosecuting  their  private  gain,  amassed 
large  sums  of  money  to  the  great  prejudice  of 
the  public."  Jay's  objections  were  based  on 
broad  constitutional  grounds :  "  An  equal  right 
to  life,  liberty,  and  property  is  a  fundamental 
principle  in  all  free  societies  and  states,  and  is 
intended  to  be  secured  to  the  people  of  this  State 
by  the  Constitution  thereof ;  and  therefore  no 
member  of  this  State  can  constitutionally  or 
justly  be  constrained  to  contribute  more  to  the 
support  thereof  than  in  like  proportion  to  the 
other  citizens,  according  to  their  respective  es- 
tates and  abilities."  .  .  .  "To  tax  a  faculty  is 
to  tolerate  it,  vice  not  being  in  its  nature  a  sub- 
ject of  taxation."  ..."  By  the  principles  of 
the  Constitution,  .  .  .  except  in  cases  of  attaind- 
er, ...  no  citizen  is  liable  to  be  punished  by 
the  State  but  such  as  have  violated  the  laws  of 
the  State.  .  .  .  Supposing,  therefore,  that  the 
persons  aimed  at  in  this  bill  have  acquired 
riches  immorally,  yet  if  they  have  acquired  them 
in  a  manner  which  the  Legislature  has  not 
thought  proper  to  prohibit,  they  are  not  obnox- 
ious to  human  punishment,  however  much  they 
may  be  to  divine  vengeance.  But  if,  on  the 
other  hand,  these  persons  have  acquired  riches 
in  a  manner  prohibited  by  the  law  of  the  land, 
they  ought  to  be  tried  and  punished  in  the  way 


104  JOHN  JAY. 

directed   by  these  laws,  and   not  subjected  to 
double  punishment."  1 

These  words,  so  full  of  reasonableness,  love 
of  legality,  and  hatred  of  injustice  may  well 
close  our  account  of  the  period  that  is  here 
roughly  termed  that  of  Jay's  constructive 
statesmanship.  Years  are  to  pass  before  we 
find  him  again  in  the  service  of  his  State ;  but 
from  that  day  to  this,  New  York  has  borne  upon 
its  fundamental  law  the  deep  impression  of  his 
character. 

1  Street,  The  Council  of  Revision,  pp.  214,  215. 


CHAPTEK  V. 

PRESIDENT   OF   CONGRESS. 
1779. 

FOR  many  years  the  boundaries  between  New 
York,  New  Hampshire,  and  Massachusetts  had 
been  a  source  of  controversy  and  confusion. 
The  inhabitants  of  the  disputed  territory  were 
unusually  hardy  and  independent,  and  as  early 
as  1772  and  1773  there  were  riots  in  Gloucester 
and  Cumberland  counties  against  claimants  of 
land  under  title  from  New  York.  Agents  were 
sent  to  England  with  petitions  to  the  Crown, 
and  the  case  on  behalf  of  New  York  was  pre- 
pared by  Duane  and  included  in  an  elaborate 
report  to  the  Assembly.  The  breaking  out  of 
the  Revolution  prevented  any  settlement  of  the 
question  at  that  time.  But  the  Declaration  of 
Independence  was  utilized  by  Ethan  Allen  and 
his  followers  as  a  good  opportunity  to  declare 
the  independence  of  the  territory  which  they 
now  began  to  call  Vermont.  In  January,  1777, 
Vermont  declared  itself  a  free  and  independ- 
ent State,  and  a  convention  of  delegates  met 


106  JOHN  JAY. 

at  Windsor,  July  2d,  to  frame  a  constitution. 
Ethan  Allen  wrote  a  vigorous  pamphlet  vindicat- 
ing the  right  of  Vermont  to  statehood.  "  There 
is  quaintness,  impudence,  and  art  in  it,"  wrote 
Jay  to  Morris.1  "  Strange,"  replied  Morris, 
"  strange  that  men  in  the  very  act  of  revolting, 
should  so  little  consider  the  temper  of  revolt- 
ers."  2  The  process  of  New  York  courts  ceased 
to  run  in  the  northeastern  counties.  Troops 
were  dispatched  to  quell  the  outbreak,  but  met 
with  no  success.  The  New  York  Convention  at 
last  applied  through  their  delegates  to  Congress, 
which  appointed  a  committee  upon  the  letters 
from  the  Convention,  and  a  petition  from  the 
inhabitants  of  the  New  Hampshire  Grants,  as 
they  were  technically  described.  On  the  report 
of  the  committee,  it  was  resolved  that  the  De- 
claration of  Independence  in  no  way  justified 
Vermont  in  separating  from  New  York,  and 
that  Congress,  representing  the  thirteen  States, 
could  not  countenance  anything  injurious  to  the 
rights  of  any  one  of  them. 

Burgoyne's  expedition  was  taken  advantage 
of  by  the  Vermonters  to  coerce  the  States  by 
coquetting  with  the  enemy ;  and  for  a  time  the 
situation  was  full  of  menace.  "  General  Bur- 
goyne,"  wrote  H.  B.  Livingston  to  Jay,  June 

1  Sparks,  Morris,  i.  210. 

2  Ibid.,  i.  212. 


PRESIDENT  OF    CONGRESS. 


107 


17th,  "  has  sent  a  summons  to  the  people  of  the 
Grants  to  meet  Governor  Skene  at  Castletown, 
to  be  there  acquainted  with  the  terms  on  which 
they  shall  hold  their  property,  and  threatening 
with  immediate  death  all  who  refuse  their  at- 
tendance. General  Schuyler,  in  answer  to  this, 
has  sent  a  proclamation  declaring  that  those 
who  comply  with  Burgoyne's  summons  shall  be 
punished  as  traitors.  Many  have  taken  protec- 
tion. Those  who  are  discovered  are  committed 
to  gaol." l  What  was  originally  merely  an  agra- 
rian rising  against  claimants  under  legal  titles 
from  a  distant  and  disputed  government  was 
thus  rapidly  becoming  a  serious  political  ques- 
tion. Finally  the  New  York  Legislature  re- 
solved that  there  existed  "  a  special  case,"  in 
the  sense  of  the  Constitution,  that  would  justify 
the  appointment  of  Jay  to  Congress  without 
vacating  his  seat  on  the  bench.  He  was  accord- 
ingly charged  with  the  special  mission  of  urging 
on  Congress  a  settlement  of  the  territorial  claims 
of  his  State,  and  thus  returned  to  the  scene  of 
his  early  labors. 

In  Congress,  at  the  moment,  the  conduct  of 
Silas  Deane,  recently  recalled  from  France, 
was  the  subject  of  long  and  vehement  debate. 
Among  other  questions  involved  was  that  of  the 
contracts  for  war  material  with  the  versatile, 
1  Jay  MSS. 


108  JOHN  JAY. 

well-disposed,  but  devious  Beaumarchais.  Ar- 
thur Lee,  Deane's  fellow-commissioner,  misled 
by  the  secrecy  adopted  by  the  French  govern- 
ment to  avoid  complications  with  England,  al- 
leged incorrectly  that  the  arms  were  the  free 
gift  of  France,  and  attacked  Deane's  integrity. 
"  Many  persons  whom  you  know  are  very  liberal 
of  illiberality,"  Morris  had  written  to  Jay  in 
August.  "Your  friend  Deaiie,  who  hath  ren- 
dered the  most  essential  services,  stands  as  one 
accused.  The  storm  increases,  and  I  think  some 
one  of  the  tall  trees  must  be  torn  up  by  the 
roots."  l  "I  think  our  friend  D.,"  wrote  Robert 
Morris,  "has  much  public  merit,  has  been  ill 
used,  but  will  rise  superior  to  his  enemies."  2 
Deane  was  a  gentleman  of  breeding  and  educa- 
tion, with  easy  diplomatic  manners,  who,  at  the 
beginning  of  the  Revolution,  was  Chairman  of 
the  Committee  of  Safety  in  Connecticut,  and  a 
member  of  the  first  Continental  Congress.  When 
he  was  sent  abroad  as  agent  of  the  Secret  Com- 
mittee, it  was  with  Jay  that  he  regularly  cor- 
responded. In  Paris  he  found  himself  "with- 
out intelligence,  without  orders,  and  without  re- 
mittances, yet  boldly  plunging  into  engagements 
and  negotiations,  hourly  hoping  that  some- 
thing will  arrive  from  America."  The  truth 

1  G.  Morris  to  Jay,  Aug.  16,  1778,  Jay  MSS. 

2  Sept.  8,  1778,  Jay  MSS. 


PRESIDENT  OF  CONGRESS.       109 

of  his  account  of  his  dealings  with  Beaumar- 
chais  is  now  fully  proved.  It  was  then  incon- 
sistently charged  that  the  articles  sent  were  of 
poor  quality,  and  that  they  were  gifts  of  France 
not  intended  to  be  paid  for.  But  Deane  had 
written  at  the  beginning,  "  Mons.  Beaumarchais 
has  been  my  minister  in  effect,  as  this  court  is 
extremely  cautious,  and  I  now  advise  you  to  at- 
tend carefully  to  the  articles  sent  you  as  I  could 
not  examine  them  here.  I  was  promised  they 
should  be  good,  and  at  the  lowest  prices." 1 
Only  a  year  before  Captain  Nicholas  Kogers,  in 
transmitting  to  Jay  some  of  Deane's  letters,  in- 
cidentally gave  testimony  to  Deane's  worthiness 
at  that  time.  "You  will  use  a  certain  liquid 
(that  Mr.  Deane  told  me  you  had)  upon  the 
margin  of  the  printed  -  sheets  so  as  to  make  leg- 
ible what  Mr.  Deane  has  wrote ;  should  it  not 
have  its  proper  effect,  which  I  am  afraid  of,  as 
the  letters  were  put  into  a  tin  box  in  a  barrel  of 
rum  which  was  eat  through,  and  I  am  afraid  has 
damaged  them,  the  enclosed  letter  is  of  the  same 
contents.  ...  I  liv'd  at  Paris  in  the  same  house 
with  Mr.  Deane  and  had  the  Pleasure  of  being 
particularly  intimate  with  him.  ...  I  should 
be  happy  to  inform  you  and  answer  you  any 
questions  concerning  the  most  of  Mr.  Deane's 
transactions  the  last  summer,  which  he  perform'd 

1  To  Jay,  Dec.  3,  1776. 


110  JOHN  JAY. 

with  the  warmth  of  the  most  zealous  of  Patri- 
ots." 1  That  Deane  subsequently,  embittered, 
perhaps,  by  persecution,  became,  in  Jay's  opin- 
ion, a  traitor  to  his  country,  ought  not  to  be 
allowed  to  affect  one's  judgment  of  his  antece- 
dent conduct.  Certainly,  with  the  knowledge 
that  he  possessed  at  the  time,  Jay  was  in  honesty 
bound  to  defend  and  sustain  his  friend,  and  he 
did  so  ;  thus  winning  unawares  the  approbation 
of  the  French  envoy,  who  was  personally  and 
officially  interested  in  the  same  cause. 

To  the  outspoken  attacks  of  Lee,  Deane  at 
last  responded  by  a  bitter  article  in  a  newspaper 
commenting  on  the  character  of  Lee  and  the 
delay  of  Congress.  In  Congress  and  out  of  it 
the  article  created  intense  excitement.  "  Mr. 
President  Laurens  brought  the  newspaper  with 
him  to  the  House,  and  from  the  Chair  proposed 
that  it  should  be  read,  in  order  that  it  might 
become  the  subject  of  certain  resolutions.  The 
House  not  thinking  it  proper  to  come  into  that 
measure,  he  resigned  the  Chair,  saying  that  he 
could  no  longer  hold  it  consistent  with  his  honor. 
They  were  disgusted  and  adjourned.  The  next 
day  his  friends  attempted  to  replace  him,  but  did 
not  succeed.  A  new  President  was  elected." 2 
Such  is  the  colorless  description  of  the  stormy 

1  June  4,  1777,  Jay  MSS. 

2  Jay  MSS. 


PRESIDENT   OF  CONGRESS. 


Ill 


scene  given  by  Jay,  who  was  chosen  the  new 
president. 

Among  the  many  congratulations  Jay  received, 
that  from  his  wife,  though  touched  with  wo- 
manly regret,  must  have  pleased  him  most :  "  I 
had  the  pleasure  of  finding  by  the  newspapers 
that  you  are  honor'd  with  the  first  office  on  the 
Continent,  and  am  still  more  pleased  to  hear 
this  appointment  affords  general  satisfaction. 
...  I  am  very  solicitous  to  know  how  long  I  am 
still  to  remain  in  a  state  of  widowhood :  upon 
my  word  I  sincerely  wish  three  months  may 
conclude  it ;  however,  I  mean  not  to  influence 
your  conduct,  for  I  am  convinced  that,  had  you 
consulted  me  as  some  men  have  their  wives 
about  public  measures,  I  should  not  have  been 
Roman  matron  enough  to  have  given  you  so 
entirely  to  the  public." l  "  Sally !  "  was  the  old- 
fashioned  reply,  with  sedate  words  still  pulsating 
with  love  and  longing  for  home  ;  "  Sally !  the 
charms  of  this  gay  city  would  please  me  more  if 
you  partook  of  them.  I  am  afraid  to  think  of 
domestic  happiness ;  it  is  a  subject  which  pre- 
sents to  my  imagination  so  many  shades  of  de- 
parted joys,  as  to  excite  emotions  very  improper 
to  be  indulged  in  by  a  person  in  my  station, 
determined  at  every  hazard  to  persevere  in  the 
i  D,ec.  28, 1778,  Jay  MSS. 


112  JOHN  JAY. 

pursuit  of  that  great  object  to  which  we  have 
sacrificed  so  much." 1 

The  history  of  Jay's  presidency  of  Congress 
is  too  much  that  of  the  country  to  be  written 
here.  It  is  necessary  to  refer  only  to  affairs 
especially  intrusted  to  him.  The  condition  of 
the  currency  was  such  as  to  cause  the  gravest 
anxiety.  "  Our  money,"  wrote  R.  R.  Living- 
ston to  Jay  in  October,  1778,  "  is  so  much  de- 
preciated as  hardly  to  be  current,  and,  as  a 
necessary  consequence  of  this,  our  expenses 
have  increased  beyond  all  conception.  Accord- 
ing to  a  calculation  which  I  have  made  it  costs 
as  much  to  maintain  the  army  two  months  now, 
as  it  did  to  maintain  them  for  the  whole  of  the 
year  1776.  It  is  absolutely  necessary  that  we 
should  get  out  of  this  war  soon." 2  Accord- 
ingly, as  one  of  his  first  duties,  Jay  was  directed 
to  write  a  letter  to  the  States  explaining  the  ac- 
tion of  Congress  in  limiting  the  issue  of  paper 
money,  and  calling  on  the  States  for  funds  to 
meet  current  expenses.  If  the  letter  hardly 
showed  a  thorough  knowledge  of  the  principles 
of  finance,  it  must  be  remembered  that  few 
statesmen  of  that  day  had  such  knowledge,  and 
it  at  least  answered  the  purposes  of  the  moment. 
It  stated  simply  the  causes  of  depreciation, 

1  Jan.  31,  1779,  Jay  MSS. 

2  Oct.  8,  1778,  Jay  MSS. 


PRESIDENT    OF  CONGRESS.  113 

which  was  held,  in  this  case,  to  be  artificial,  or 
due  to  lack  of  confidence  in  the  government, 
and  not  natural,  due  to  excessive  issue.  The 
rest  of  the  letter  aimed  to  restore  public  con- 
fidence by  affirming  the  honest  intentions  of 
Congress  to  fulfill  their  engagements,  and  prov- 
ing their  ability  to  do  so  by  reference  to  the 
enormous  undeveloped  wealth  of  the  country 
and  the  indefinite  increase  of  population  to  be 
expected  from  immigration.  It  is  easy  to  no- 
tice now  that  the  amount  of  paper  then  issued 
was  far  in  excess  of  what  could  possibly  be 
maintained  at  par  in  the  natural  course  of  busi- 
ness. But  a  bankrupt  in"  need  of  money  cannot 
afford  to  be  logical,  and  an  appeal  to  an  opti- 
mistic patriotism  was  then  the  only  resource.  In 
later  life,  to  Jay,  as  to  many  other  Federalists, 
the  future  of  the  country  seemed  dark  and  un- 
promising ;  but  now  the  optimistic  close  of  his 
letter  to  the  States  only  expressed  his  own 
serious  confidence  that  the  evils  of  the  present 
were  temporary,  and  that  dawn  was  soon  to 
break.  "  Calm  repose  and  the  sweets  of  undis- 
turbed retirement,"  he  wrote  to  Washington, 
"  appear  more  distant  than  a  peace  with  Brit- 
ain. It  gives  me  pleasure,  however,  to  reflect 
that  the  period  is  approaching  when  we  shall  be 
citizens  of  a  better  ordered  state,  and  the  spend- 
ing of  a  few  troublesome  years  of  our  eternity 


114  JOHN  JAY. 

in  doing  good  to  this  and  future  generations  is 
not  to  be  avoided  or  regretted.  Things  will 
come  right,  and  these  States  will  be  great  and 
flourishing.  The  dissolution  of  our  government 
threw  us  into  a  political  chaos.  Time,  wisdom, 
and  perseverance  will  reduce  it  into  form.  .  .  . 
In  this  work  you  are,  in  the  style  of  one  of  your 
professions,  a  master-builder,  and  God  grant 
that  you  may  ever  continue  a  free  and  accepted 
mason."  1 

The  matter  of  Vermont  was,  of  course,  Jay's 
especial  charge,  and  this  proved  extremely  diffi- 
cult of  adjustment.  Congress  was  reluctant  to 
intervene  in  any  local  territorial  dispute,  how- 
ever important.  There  were  many  different 
interests  to  reconcile,  and  all  the  members  of 
Congress  were  not  disinterested.  "  There  is  as 
much  intrigue  in  this  State  House,"  wrote  Jay 
to  Washington,  "  as  in  the  Vatican,  but  as  little 
secrecy  as  in  a  boarding  -  school."  2  For  the 
greater  part  of  a  year  there  was  no  progress 
to  report.  At  length,  in  August,  1779,  he  ad- 
vised the  legislatures  of  New  York  and  New 
Hampshire  to  authorize  Congress  to  settle  the 
line  between  them,  and  the  Legislature  of  New 
York,  in  addition,  to  empower  Congress  to  ad- 
just their  private  controversy  with  the  people  of 

1  April  21,  1779,  Jay  MSS. 

2  AprU  26,  1779,  Jay  MSS. 


PRESIDENT  OF  CONGRESS.  115 

Vermont.1  This  done,  Jay  moved  and  carried 
resolutions  submitting  the  disputed  boundaries 
to  arbitration  by  commissioners  representing 
New  York,  New  Hampshire,  and  Vermont. 
This  explicit  recognition  of  the  new  claimant 
to  statehood  was  a  surrender  of  the  technical 
claims  of  New  York,  which  he  justified  with 
characteristic  common  sense  in  a  letter  to  Gov- 
ernor Clinton :  "  In  my  opinion  it  is  much  better 
for  New  York  to  gain  a  permanent  peace  with 
her  neighbors  by  submitting  to  these  inconven- 
iences, than,  by  an  impolitic  adherence  to  strict 
rights,  and  a  rigid  observance  of  the  dictates  of 
dignity  and  pride,  remain  exposed  to  perpetual 
dissensions  and  encroachment."  2  Almost  the 
last  official  act  of  Jay  as  delegate  was  the  draft- 
ing of  bills  embodying  resolutions  of  Congress 
that  met  the  assent  of  all  three  States ;  and  his 
task  was  apparently  accomplished.  But  the 
Congress  had  no  power  of  coercion,  and  the 
dispute  remained  open  till  after  the  ratification 
of  the  Constitution,  when  it  was  settled  for- 
ever, somewhat  ignominiously,  by  the  transfer  of 
$30,000  from  the  treasury  of  Vermont  to  the 
treasury  of  New  York. 

Jay  was  *  continued   in    Congress  by   special 
vote  of  the  New  York  Legislature  till  October 

1  To  Governor  Clinton,  Aug.  27,  1779. 

2  Jay's  Jay,  i.  92. 


116  JOHN  JAY. 

15th ;  but  he  was  already  contemplating  retire- 
ment from  public  life,  so  neglected  had  been 
his  private  affairs,  so  necessitous  had  become 
the  condition  of  his  family.  On  August  10th 
he  gave  in  his  resignation  of  the  chief  justice- 
ship of  New  York  and  insisted  on  its  accept- 
ance, simply  remarking  :  "  I  shall  return  to  pri- 
vate life,  with  a  determination  not  to  shrink 
from  the  duties  of  a  citizen.  During  the  con- 
tinuance of  the  present  contest  I  considered  the 
public  as  entitled  to  my  time  and  services." 
Now  that  our  victory  is  assured,  was  perhaps 
the  innuendo,  I  may  be  honorably  discharged. 
"  Popularity,"  he  repeated  a  few  days  later  to 
Clinton,  "  is  not  among  the  number  of  my  ob- 
jects. A  seat  in  Congress  I  do  not  desire,  and 
as  ambition  has  in  no  instance  drawn  me  into 
public  life  I  am  sure  it  will  never  induce  me  to 
continue  in  it.  Were  I  to  consult  my  interest 
I  should  settle  here  and  make  a  fortune ;  were 
I  guided  by  inclination  I  should  now  be  attend- 
ing to  a  family  who,  independent  of  other  mis- 
fortunes, have  suffered  severely  in  the  present 
contest."  1  So  dangerous  was  the  country  about 
Fishkill  that  Peter  Jay,  at  a  hint  of  a  visit  from 
his  son,  urged  him  not  to  come  :  for  "  gangs  of 
villains  make  frequent  excursions  from  our 
neighbouring  mountains  for  prey,"  and  might 

1  Aug.  27, 1779,  Jay  MSS. 


PRESIDENT  OF   CONGRESS.  117 

find  his  "  person  too  tempting  an  acquisition  to 
be  neglected."  l  The  old  merchant  was  indeed 
much  broken  and  in  no  little  distress  :  "  I  am," 
he  lamented,  "  unfortunately  too  much  reduced 
to  attend  effectually  to  business.  .  .  .  I  've  not 
yet  got  an  inch  of  ground  plowed  for  wheat.  .  .  . 
I  have  no  prospect  yet  of  getting  any  salt  for 
salting  my  beef  and  pork  this  fall,  nor  have  I 
anybody  to  look  out  for  me.  Hard  times  !  "  2 
His  sister  Eve  had  married  a  clergyman,  who 
died  soon  afterwards,  leaving  her  in  extreme 
poverty ;  and  she  and  her  son,  Peter  Jay 
Munro,  were  taken  entire  care  of  by  Jay,  at 
a  time  when  he  was  complaining  to  Governor 
Clinton  that  the  New  York  delegates  were  "  not 
allowed  sufficient  to  maintain,  or  rather  subsist, 
themselves."  3  Her  gratitude  was  adequate,  and 
must  have  been  overwhelming  to  Jay:  "Give 
me  leave,  Sir,  to  tell  you  that  you  are  not  only 
a  kind  brother,  but  a  very  affectionate  father 
and  husband  to  me,  and  a  most  tender  father  to 
my  poor  son."  4  Public  duty,  however,  obliged 
him  to  leave  to  his  brothers,  Frederick  and  Sir 
James,  the  care  of  the  family. 

Politicians  have  occasionally  been  known,  per- 

1  Jay  MSS. 

2  Sept.  1,  1779,  Jay  MSS. 

3  Aug.  27,  1779,  Jay  MSS. 

*  From  Mrs.  Munro,  Oct.  18,  1779. 


118  JOHN  JAY. 

haps,  to  avow  a  preference  for  a  quiet  home  life 
in  the  country,  with  an  over-keen  desire  to  be 
taken  at  their  word.  But  the  sentiment  was 
often  on  Jay's  reticent  but  truthful  lips  at 
every  period  of  his  life ;  and  he  proved  his  sin- 
cerity by  his  thirty  years  of  voluntary  retire- 
ment. The  same  story  of  simple  tastes  and 
strong  affections  is  told  by  his  letters  written 
while  president  of  Congress  to  his  wife.  She 
was  at  Persipiney,  New  Jersey,  with  her  father, 
when  Jay  sat  one  night  thinking  of  her  in  his 
room.  "It  is  now  nine  o'clock,  my  fellow- 
lodgers  out,  and,  what  seldom  happens,  I  am 
perfectly  alone,  and  pleasing  myself  with  the 
prospect  of  spending  the  remainder  of  the  even- 
ing in  writing  a  letter  to  you.  As  it  rains  and 
snows  there  is  less  probability  of  my  being  in- 
terrupted, and  for  that  reason  I  prefer  it  to 
moonshine  or  starlight."  What  a  charming 
introduction,  one  might  think,  to  a  little  vol- 
ume of  priceless  gossip  and  confidences!  But 
no,  the  letter  is  only  to  say  that  he  loves  her, 
and  is  lonely  without  her ;  prudence  forbids 
any  anecdotes,  any  news,  for  have  not  two  of 
his  letters  just  fallen  "  into  the  enemy's  hands 
at  Elizabeth  Town."1  "I  esteem  it  a  bless- 
ing," he  writes  again,  "  that  (when  absent  from 
you)  solitude  is  so  far  from  being  irksome,  that 

1  To  Mrs,  Jay,  March  5,  1779. 


PRESIDENT   OF  CONGRESS.  119 

I  often  court  and  enjoy  it.  Hence  it  is  that, 
altho'  few  are  more  fond  of  society,  I  oftener 
walk  and  ride  without  than  with  company. 
There  is  a  kind  of  satisfaction  in  being  able, 
without  any  breach  of  politeness,  to  pursue  one's 
own  inclination,  to  ride  as  fast  or  as  slow,  to 
stop  as  short  or  as  long,  to  take  this  or  that 
road,  as  may  be  most  agreeable.  ...  In  this 
unfriendly  month  [of  March],  Nature,  you 
know,  appears  in  a  rude  and  dirty  garb;  so 
that  as  yet  I  must  be  silent  about  'lonely  de- 
vious walks  '  thro'  '  verdant  fields  '  or  '  shady 
groves  ; '  nor  would  it  be  in  season  to  say  a 
word  of  '  gentle  breezes,'  '  melodious  birds,'  or 
'  the  hum  of  bees  inviting  sleep  sincere.' "  * 

It  was,  however,  more  than  twenty  years  be- 
fore his  modest  wishes  were  gratified,  and  then 
she  whom  he  loved  so  could  not  share  his  pleas- 
ure. Now  a  new  and  unsought  appointment 
was  bestowed  on  him,  full  of  new  trials  and 
not  unexpected  disappointments ;  and  on  Octo- 
ber 1st  Jay  resigned  the  chair  of  Congress,  re- 
ceiving a  vote  of  thanks  "  in  testimony  of  their 
approbation  of  his  conduct,"  as  he  was  passed 
on  to  labors  in  a  new  field. 

1  To  Mrs.  Jay,  March  17,  1779. 


CHAPTER  VI. 

MINISTER  TO   SPAIN. 

1779-1782. 

THE  treaties  with  France,  concluded  February 
6,  1778,  recognized  American  independence,  and 
provided  that  in  case  England  should  declare 
war  against  France,  the  two  powers  should  make 
common  cause,  and  that  neither  of  them  should 
conclude  a  truce  or  peace  until  the  independence 
of  the  United  States  had  been  secured.  Though 
Vergennes  had  declared  three  months  before  that 
no  such  treaty  could  be  made  without  the  con- 
sent of  Spain,  on  account  of  the  obligations  of 
the  Bourbon  Family  Compact,  and  the  necessity 
of  a  Spanish  alliance  in  the  event  of  the  war 
likely  to  be  precipitated,  the  treaty  was  not,  in 
fact,  communicated  to  Spain  till  after  its  sign- 
ing ;  but  a  secret  clause  was  inserted  providing 
for  her  accession  to  its  terms.  England,  as  was 
expected,  regarded  the  treaty,  long  denied  with 
a  brazen  face  by  the  French  minister  at  London, 
as  an  act  of  war,  and  for  the  next  two  years 
France  was  fighting  England  single-handed  so 


MINISTER   TO  SPAIN.  121 

far  as  European  allies  were  concerned.  The  aid 
of  Spain  was  essential,  and  to  gain  this  Ver- 
gennes,  through  his  minister,  Montmorin,  at 
Madrid,  bent  all  his  powers  of  artifice  and  per- 
suasion. 

Charles  III.  of  Spain  hated  the  idea  of  an- 
other war,  and  wished  only  to  end  his  days  in 
peace.1  He  was  a  conscientious  man  and  de- 
voted to  his  family,  and  Louis  XV.  was  his 
nephew;  but  he  was  haughty,  suspicious,  and 
stubborn;  he  was  piqued  at  being  thought  a 
tool  of  France,  and  the  abrupt  ending  of  the 
last  war  made  him  fear  that,  without  a  special 
guarantee,  France,  after  dragging  him  into  this 
new  struggle,  might  again  conclude  a  separate 
peace,  regardless  of  the  interests  of  Spain.2  His 
minister,  Florida  Blanca,  indignant  at  the  Amer- 
ican treaty,  hindered  in  every  way  the  early 
French  naval  expeditions,  cleverly  avoided  ex- 
planations, and  finally  suggested  that  the  only 
way  to  induce  Spain  to  declare  herself  was  by 
agreeing  not  to  make  peace  without  securing  the 
restitution  of  Gibraltar,  Florida,  and  Jamaica. 
In  the  meanwhile,  with  the  notion  of  deceiving 
England  till  the  time  should  be  ripe  for  a  sud- 
den blow,  he  was  playing  the  part  of  a  mediator, 
and  Lord  Weymouth  was  coquetting  with  him 
with  dissimulation  as  deep  as  his  own. 

1  Vergennes  to  Montmorin,  Oct.  24,  1778,  Doniol,  iii.  24. 

2  Montmorin  to  Vergennes,  Doniol,  iii.  495,  497. 


122  JOHN  JAY. 

This  negotiation  revealed  the  actual  wishes  of 
the  two  courts.  France  submitted,  as  her  low- 
est terms,  the  political  and  territorial  indepen- 
dence of  the  United  States,  the  withdrawal  of 
the  English  commissionership  from  Dunkirk,  a 
fair  partition  of  the  Newfoundland  fisheries,  ac- 
cording to  the  treaty  of  Utrecht,  and,  if  possible, 
a  modification  of  the  navigation  laws.1  Spain 
proposed  in  addition  that  England  should  keep 
Canada  and  Nova  Scotia,  but  that  Spain  should 
take  so  much  of  Florida  as  was  necessary  for 
the  monopoly  of  the  navigation  of  the  Gulf  of 
Mexico.2  The  Spanish  court,  as  Montmorin 
thought,  exaggerating  the  prosperity  and  pro- 
gress of  the  United  States,  deemed  it  essential  to 
leave  "  seeds  of  division  and  jealousy  between  " 
them  and  England.3  That  court  was  not  only 
perfectly  indifferent  to  the  claims  of  the  United 
States,4  but  was  convinced  that  in  no  long  time 
they  would  become  her  enemies,  and  was,  there- 
fore, bent  on  keeping  them  from  the  Mississippi, 
and  as  far  from  her  own  colonies  as  possible. 
As  neighbors,  the  Americans  would  be  as  objec- 
tionable as  the  English.  When  read  in  the 

1  Verg-ennes  to  Montmorin,  Oct.  13,  1778,  Doniol,  iii.  551. 

2  Montmorin  to  Vergennes,  Oct.  15,  1778,  Doniol,  iii.  556, 
557. 

8  Montmorin  to  Vergennes,  Oct.  19,  1778,  Doniol,  iii.  558, 
559. 
4  Doniol,  iii.  575. 


MINISTER  TO  SPAIN. 


123 


light  of  these  intentions,  the  word  Florida  be- 
comes indefinitely  comprehensive.  Even  the 
independence  of  America  was  objected  to,  and 
France  was  blamed  for  having  guaranteed  it. 
Would  not  a  truce  serve  the  purpose  ?  It  was 
obvious  that  Spain  was  holding  off  till  France, 
no  longer  able  to  do  without  her,  would,  at  the 
dictation  of  Spain,  submit  to  any  terms  of  alli- 
ance, even  the  sacrifice  of  the  sovereignty  of  the 
United  States.  France  had  now  to  modify  her 
views,  or  to  risk  losing  Spanish  cooperation  al- 
together.1 The  terms  of  Spain,  by  changing  the 
objects  of  the  war,  might  prolong  it  indefinitely ; 
but  Vergennes  had  to  accept  even  so  hard  a  bar- 
gain, and,  while  complaining  bitterly  of  the 
"gigantic  pretensions"  of  Spain,2  he  signed 
the  treaty  of  Aranjuez,  April  12,  1779. 

In  this  treaty  is  to  be  found  the  key  to  the 
political  situation  in  1779  and  during  the  three 
years  following.  By  it  Spain  agreed  to  make 
no  treaty  with  or  concerning  the  United  States 
without  the  participation  of  France;  if  France 
should  conquer  Nova  Scotia  the  fisheries  were  to 
be  shared  between  them  ;  and  neither  party  was 
to  lay  down  arms  till  Gibraltar  was  secured  to 
Spain,  and  to  France  the  abolition  of  the  Eng- 

1  Doniol,  iii.  576. 

2  Vergennes  to  the  King-,  Doniol,   iii.  588. 


124  JOHN  JAY. 

lish  commissionership  at  Dunkirk,  or  whatever 
other  benefit  she  might  choose  instead.1 

While  the  attitude  of  Spain  remained  still 
undetermined,  the  state  of  public  opinion  in 
America  was  of  course  to  France  a  matter  of 
the  first  importance.  If  Congress  should  insist 
on  the  Mississippi,  Florida,  and  the  western 
territories,  all  which  were  included  in  the  Span- 
ish conception  of  Florida,  they  ruined  the 
possibility  of  either  a  satisfactory  peace  or  a 
successful  war,  for  Spain  would  then  refuse  to 
act  either  as  mediator  or  ally.  As  President 
of  Congress,  Jay  was  present  at  the  numerous 
meetings  of  the  Committee  on  Foreign  Affairs, 
when  Gerard  urged  the  necessity  of  moderating 
their  claims  to  meet  the  views  of  Spain.  Soon 
after  Jay's  installation  Gerard  gave  him  a  din- 
ner, and  for  two  hours  with  Mirales,  the  Span- 
ish envoy,  and  several  members  of  Congress,  he 
smoked  and  listened  to  Gerard's  argument  that 
policy  required  "  a  permanent  line  of  separa- 
tion" between  Spanish  and  American  posses- 
sions, and  that  only  by  so  limiting  themselves 
could  the  States  remove  the  European  belief 
that  they  were  naturally  turbulent  and  ambi- 
tious like  their  English  fathers.  Jay  diplomatic- 
ally suggested  that  France  was  as  much  interested 
in  this  arrangement  as  Spain,  and  Gerard,  see- 

1  De  Circourt,  p.  335. 


MINISTER  TO  SPAIN.  125 

ing  that  no  definite  propositions  were  following, 
dropped  the  subject  with  the  reply  that  that  was 
all  the  more  reason  for  adopting  it.1  Then  and 
at  other  times  Gerard  urged  the  danger  to  the 
colonies  of  too  extensive  boundaries,  and  fancied 
that  Jay  assented  to  the  idea  of  bounding  the 
colonies  as  they  were  at  the  beginning  of  the 
Revolution.2  That  would  exclude  the  Missis- 
sippi ;  and  Gerard  argued,  according  to  his  in- 
structions, that  a  claim  to  the  navigation  of  the 
Mississippi  or  to  the  western  territory  beyond 
it  was  absurd,  and  was  opposed  to  the  policy  of 
France  and  S^ain,  since  the  United  States  could 
not  be  held  to  succeed  to  the  claims  or  rights  of 
Great  Britain,  which  were  still  open  to  be  con- 
quered by  Spain.  But  for  such  a  purpose  France, 
he  said,  would  certainly  not  continue  the  war.3 
Similar  opinions  Gdrard  expressed  to  Jay  often 
in  his  own  rooms  as  the  evening  deepened  to- 
wards midnight,  and  Jay  has  left  a  record  of  his 
views  at  the  time  which  concurred  closely  with 
Gerard's :  that  we  had  no  right  to  the  Floridas, 
and  that  the  Mississippi  "  we  should  not  want 
this  age."  4  Of  Jay,  accordingly,  Gerard  had 
the  highest  opinion :  "  he  is  a  man  of  enlight- 

1  De  Circourt,  pp.  260,  261,  Ge"rard  to  Vergennes,  Dec.  22, 
1778. 

2  De  Circourt,  p.  266,  Gerard  to  Vergennes,  Jan.  28,  1779. 

3  De  Circourt,  p.  264.    . 

4  Jay's  Jay,  I  95,  100. 


126  JOHN  JAY. 

ened  understanding,"  he  wrote  to  Vergennes, 
"  free  from  prejudice,  capable  of  broad  views ; 
he  is  sincerely  attached  to  the  alliance  and  an 
enemy  of  the  English.  He  takes  infinite  pleas- 
ure in  the  idea  that  this  triumvirate,  as  he  calls 
it,  of  France,  Spain,  and  America,  will  defy  the 
forces  of  the  whole  world.  He  talks  with  frank- 
ness and  good  faith,  and  yields  willingly  to  the 
good  arguments  one  presents  to  him.  I  am  much 
mistaken  if  we  shall  not  have  reason  to  regret 
if  his  presidency  is  as  short  as  it  seems  likely  to 
be." l  Jay  was  at  all  times  an  excellent  listener, 
and  to  this  useful  and  amiable  trait  may  be  due 
not  a  little  of  Gerard's  enthusiasm.  It  was, 
however,  not  a  wholly  one-sided  bargain  at  this 
stage  in  the  war  to  secure  a  triple  alliance  be- 
tween France,  Spain,  and  the  United  States, 
with  a  recognition  of  independence,  in  exchange 
for  the  western  wilderness  and  waters.  But 
when  Jay  found  that  Spain  had  declared  war 
for  her  own  purposes  without  regard  to  Amer- 
ica, the  whole  situation  appeared  changed,  and 
thereafter  in  his  opinion  there  remained  nothing 
worth  the  sacrifice  even  of  part  of  the  Missis- 
sippi. 

Gerard  had  long  urged   Congress   to   come 

to  some  understanding  with  Spain  ;  suggesting 

that  on  these  lines  they  might  obtain  from  that 

1  De  Circourt,  p.  263,  Gerard  to  Vergennes,  Dec.  22,  1778. 


MINISTER   TO  SPAIN.  127 

country  an  acknowledgment  of  their  indepen- 
dence and  a  treaty  of  commerce.  At  length,  in 
September,  1779,  Congress  voted  on  the  ap- 
pointment of  a  minister  to  treat  with  Great 
Britain.  On  the  first  two  ballots,  six  States 
voted  for  John  Adams,  five  for  Jay,  and  the  vote 
of  one  State  was  divided.  New  England  was 
staunch  for  Adams,  to  champion  the  claim  to 
the  fisheries,  though  Adams  was  obnoxious  to 
France ;  while  Jay  was  the  candidate  of  New 
York.  The  next  day  the  nomination  for  a  min- 
ister to  Spain  was  opened,  and  the  friends  of 
Adams,  the  pro-English  party,  so  called  among 
them,  declared  for  Arthur  Lee,  the  enemy  of 
Deane  and  Gerard  ;  finally,  Adams  was  ap- 
pointed peace  commissioner  to  Great  Britain, 
and  Jay  minister  to  Spain.  The  choice  of  Jay, 
Gerard  informed  Yergennes,  "  leaves  nothing  to 
be  desired.  To  great  intelligence  and  the  best 
intentions,  he  unites  an  engaging  and  concilia- 
tory mind  and  character."  l  Jay  was  well  aware 
of  the  satisfaction  of  Gerard,  and  also  of  the 
Spanish  envoy,  Mirales.  "  I  have  reason  to 
think,"  was  his  dry  comment,  "  that  both  of 
them  entertained  higher  opinions  of  my  docility 
than  were  well-founded."  2 

It  was  not  an  attractive  position,  —  that  of  an 

1  Gerard  to  Vergennes,  Sept.  27,  1779,  Stevens  MSS. 

2  Jay's  Jay,  i.  100. 


128  JOHN  JAY. 

unrecognized  envoy  of  a  country  little  known 
and  less  liked,  begging  money  at  a  haughty  and 
penurious  court.  Franklin,  who  had  been  ap- 
pointed to  Spain,  January  1,  1777,  had  post- 
poned his  journey,  merely  inclosing  to  Aranda 
the  resolution  of  Congress  which  offered  Spain 
help  in  reducing  Pensacola,  —  an  offer  that  was 
never  properly  acknowledged  ;  and  Arthur  Lee, 
who  succeeded  Franklin,  had  left  Spain  in  dis- 
gust, having  succeeded  in  wringing  from  re- 
peated promises  of  millions  only  a  meagre  hun- 
dred and  seventy  thousand  livres ;  unable  to 
negotiate  a  loan,  much  less  a  treaty.1  Never- 
theless, Jay  accepted  at  once,  though  with  mod- 
est expectations.  On  October  16th,  he  received 
his  instructions,  —  to  induce  Spain  to  -form  a 
commercial  treaty  similar  to  that  with  France, 
to  acquire  a  port  on  the  Mississippi  in  Spanish 
territory,  and  to  obtain  a  loan  of  five  millions, 
or  at  least  a  subsidy,  in  exchange  for  the  Flori- 
das.  The  navigation  of  the  Mississippi  was  to 
be  preserved  at  all  hazards.  Four  days  later 
Jay  set  sail  in  the  Confederacy,  the  govern- 
ment frigate  that  had  been  ordered  to  take  Ge- 
rard back  to  France,  on  the  arrival  of  his  suc- 
cessor, Luzerne.  With  Jay  went  his  wife,  to 
the  distraction  of  old  Governor  Livingston  and 
his  wife,  who  had  no  time  to  bid  their  daughter 
1  Bolles,  Financial  Hist,  of  the  U.  S. ,  p.  246  n. 


MINISTER    TO  SPAIN.  129 

good-by ;  his  nephew,  Peter  Jay  Munro ;  his 
brother-in-law,  Colonel  Livingston,  afterwards 
Judge  of  the  United  States  Supreme  Court,  as 
his  private  secretary  ;  and  Mr.  Carmichael,  a 
member  of  Congress,  as  his  public  secretary.  A 
violent  storm  disabled  the  ship  and  forced  the 
captain  to  make  for  Martinique,  where  on  De- 
cember 18th,  they  cast  anchor  in  the  harbor  of 
St.  Pierre,  narrowly  escaping  an  English  fleet, 
which  captured  on  the  same  day  nine  French 
merchantmen  off  Port  Royal.  Some  indiscreet 
attempts  on  the  part  of  Gerard  to  discover  Jay's 
instructions  had  created  a  coolness  between  the 
two  diplomats,  which  was  increased  by  a  differ- 
ence of  opinion  on  the  proper  course  to  be  taken 
after  the  storm.  But  Adams  certainly  exag- 
gerated greatly  when  he  thought  this  petty  dis- 
sension led  Jay  to  a  general  distrust  and  dis- 
like of  Frenchmen.  At  Martinique,  the  officers 
of  the  Confederacy  naturally  fraternized  with 
French  officers  who  chanced  to  be  on  shore,  and 
Jay,  finding  the  Americans  distressed  for  lack 
of  money,  characteristically  advanced  them  a 
hundred  guineas.  The  idea  of  their  being 
"  obliged  to  sneak  .  .  .  from  the  company  of 
French  officers,"  he  wrote,  "  for  fear  of  running 
in  debt  with  them  for  a  bowl  of  punch,  was  too 
humiliating  to  be  tolerable,  and  too  destructive 
to  that  pride  and  opinion  of  independent  equal- 


130  JOHN  JAY. 

ity  which  I  wish  to  see  influence  all  our  offi- 


cers. 


Ten  days  were  lost  at  Martinique ;  then,  on 
a  frigate  lent  by  the  governor,  the  party  reem- 
barked  for  Toulon,  and  January  22,  1780,  dis- 
embarked unexpectedly  at  Cadiz,  whither  they 
were  driven  by  English  men-of-war.  Jay  was 
now,  as  he  expressed  it,  "  very  disagreeably  cir- 
cumstanced," without  letters  of  credit  or  recom- 
mendation to  any  one  there,  with  no  money  even, 
except  what  he  borrowed  through  the  courtesy 
of  a  fellow-passenger.2  He  at  once  sent  Mr. 
Carmichaelto  Madrid,  with  instructions  to  sound 
the  sentiments  of  the  court,  and  discover  how 
far  their  relations  to  the  United  States  were  in- 
dependent of  France,  —  a  significant  direction. 
Meanwhile,  Mr.  and  Mrs.  Jay  were  cordially  en- 
tertained by  the  Governor  of  Andalusia,  Count 
O'Reilly,  who  gave  Jay  a  confidential  account 
of  the  politics  of  the  court,  and  of  the  personal 
character  of  those  who  composed  it,  not  except- 
ing the  king,  —  accounts  which  Jay  afterwards 
found  to  be  perfectly  accurate.  When  the  spring 
came  they  moved  to  Madrid,  to  be  near  the  first 
Secretary  of  State,  Count  Florida  Blanca ;  a 
man  of  whom  Montmorin  said  :  "  At  times  cold 
and  phlegmatic,  at  times  violent,  he  is  in  these 

1  Jay's  Jay,  i.  105. 

2  Sparks,  Diplomatic  Corresp.  of  Amer.  Rev.,  vii.  220. 


MINISTER    TO  SPAIN.  131 

opposite  moods  equally  self-opinionative.  .  .  . 
By  the  bent  of  his  mind,  too,  he  is  inclined  to 
dissimulation."  * 

At  Madrid,  Jay  received  no  official  recogni- 
tion ;  that,  Count  Florida  Blanca  declared,  was 
to  depend  "  on  a  public  acknowledgment  and 
future  treaty."  Consequently  he  could  not  at- 
tend the  court,  and  was  neglected  by  the  nobles 
and  officials.  Some  time  was  spent  at  first  in 
answering  elaborate  inquiries  about  the  social 
and  military  condition  of  the  States ;  and  then 
came  a  long  and,  as  it  seemed  at  the  time,  an 
important  interview  with  the  minister  at  Aran- 
juez :  some  money  was  promised,  and  the  one 
obstacle  to  a  treaty  was  said  to  be  "  the  preten- 
sions of  America  to  the  navigation  of  the  Mis- 
sissippi ;  "  but  Count  Florida  Blanca  hoped  that 
"  some  middle  way  might  be  hit  on."  2  Jay's 
sense  of  diplomatic  honor  was  now  severely 
tested :  he  had  promised  the  French  minister, 
Montmorin,  to  inform  him  of  the  course  of  the 
negotiations  ;  but  this  conversation  was  confiden- 
tial. "  I  was  reduced,"  Jay  confessed,  "  to  the 
necessity  of  acting  with  exquisite  duplicity,  —  a 
conduct  which  I  detest  as  immoral,  and  disap- 
prove as  impolitic,  —  or  of  mentioning  my  diffi- 
culties to  the  Count,  and  receiving  his  answers." 

1  Montmorin  to  Vergennes,  Dec.  7,  1778,  Doniol,  iii.  610  n. 

2  Sparks,  Dipl  Corr.  of  Amer.  Rev.,  vii.  256. 


132  JOHN  JAY. 

He  told  the  Count,  it  need  not  be  said,  and  was 
allowed  to  keep  his  promise.1  Such  frankness 
must  have  seemed  naive,  perhaps  amusing,  to 
the  clever  young  diplomat,  who,  at  that  very  mo- 
ment, held  locked  in  his  own  breast  the  all  im- 
portant secret  of  the  treaty  of  Aranjuez. 

The  question  of  the  navigation  of  the  Missis- 
sippi was  a  novelty  in  international  diplomacy. 
The  United  States  was  the  first  power  to  insist 
on  the  right  of  a  people  who  live  along  a  river 
to  sail  through  the  dominion  of  other  powers  to 
its  mouth ; 2  they  also  claimed  the  same  right 
under  the  reservation  to  Great  Britain  in  the 
treaty  of  Paris  of  the  right  of  navigation.  But 
it  was  the  medieval  policy  of  Spain  to  keep 
the  Gulf  of  Mexico  a  closed  sea  from  Florida 
to  Yucatan.  Florida  Blanca,  indeed,  in  Septem- 
ber, went  so  far  as  to  say  that  the  exclusive 
navigation  of  the  Mississippi  was  the  principal 
object  of  the  war,  and  more  important  than  the 
capture  of  Gibraltar.3  Spanish  obstinacy  is  pro- 
verbial, and  on  this  point  was  as  invincible  as 
Cumberland  (the  English  agent  sent  to  draw 
Spain  into  a  separate  peace)  found  it  to  be  on 
the  question  of  the  cession  of  Gibraltar.  The 
credit  of  the  United  States  was,  moreover,  seri- 

1  Sparks,  Dipl.  Corr.  of  Amer.  Rev.,  vii.  256. 
3  Schuyler,  American  Diplomacy,  pp.  265,  266. 
8  Sparks,  Dipl.  Corr.  of  Amer.  Eev.,  vii.  456. 


MINISTER  TO  SPAIN.  133 

ously  hurt  by  Congress  suddenly  drawing  bills 
on  Jay  and  their  other  ministers  abroad,  to  be 
met  by  loans  to  be  begged  from  the  various 
courts.  Any  chance  of  compromise  was  at  once 
lost  with  the  suspicious,  selfish  court  of  Spain. 

The  first  bills  to  appear  were  drawn  on  Lau- 
rens,  who  was  supposed  at  home  to  be  at  The 
Hague,  but  who,  in  fact,  had  been  caught  by  an 
English  cruiser,  and  was  lying  in  the  Tower. 
Then  bills  were  presented  to  Jay  for  acceptance, 
drawn  on  himself;  and  not  until  months  had 
elapsed  did  the  explanation  come  from  the  Com- 
mittee for  Foreign  Affairs,  that,  even  before  news 
came  of  his  arrival,  bills  for  $  100,000  had  been 
so  drawn  at  six  months'  sight,  and  negotiated  to 
raise  money  for  the  purchase  of  military  stores ; 
and  that  so  soon  as  his  arrival  was  reported,  still 
further  bills  for  $25,000  more  were  also  drawn. 
"  I  would  throw  stones  with  all  my  heart,"  wrote 
Jay,  "  if  I  thought  they  would  reach  the  com- 
mittee without  injuring  the  members  of  it."  l 
But  he  tried  to  get  this  draft  "  on  the  bank  of 
hope,"  as  he  called  it,  cashed  by  Florida  Blanca, 
suggesting  that  the  action  of  Congress  showed 
their  reliance  on  the  friendship  of  Spain.  All 
these  bills,  which  for  the  next  year  and  a  half 
made  Franklin  and  Jay  sleepless  and  sick  with 
mortification  and  anxiety,  were  accepted  by  them 
1  Sparks,  Dipl.  Carr.  of  Amer.  Rev.,  vii.  304,  305. 


134  JOHN  JAY. 

personally,  and  were  paid  in  the  end  by  France, 
with  only  trivial  help  from  Spain.  Florida 
Blanca  insisted  on  some  equivalent  from  the 
United  States ;  he  suggested  frigates  to  be  built 
in  America,  and  manned  to  attack  East  Indian 
convoys ;  but,  as  Jay  said,  Congress  had  only 
the  money  it  got  from  these  bills  to  buy  the 
frigates  with.  He  argued  rather  shrewdly  that 
the  colonies  ought  to  be  assisted  because  they 
were  in  arms  against  the  enemies  of  Spain  and 
France  for  the  sole  purpose  of  winning  an  hon- 
orable peace  for  all  three  nations.  But  money 
was  difficult  to  procure,  even  in  Holland,  the 
richest  country  in  Europe  ;  for  the  long  wars 
had  exhausted  every  treasury,  and  "  if  America 
was  a  beggar,  England  was  a  far  greater." 1  As 
Jay  expressed  it,  "  the  fact  is,  there  is  little  corn 
in  Egypt."  2  The  net  result  of  his  long  efforts 
was  the  loan  of  $150,000  ;  and  at  length  he  was 
forced  by  promises,  that  were  not  kept,  to  suffer 
one  batch  of  bills,  not  amounting  to  over  $ 25,000, 
to  be  protested ;  but  in  a  month  they  were  re- 
deemed, and  American  credit  was  restored  by  the 
successful  importunity  of  Franklin  and  the  wise 
generosity  of  France. 

1  Bolles,  Financial  History  of  the   U.  S.,  2d  ed.,  pp.  256, 
257. 

2  Jay  to  Franklin,  Sept.  8,   1780,  E.  E.  Hale,  Franklin  in 
France,  i.  412. 


MINISTER  TO  SPAIN.  135 

When  affairs  were  once  more  in  good  train, 
everything  was  ruined  by  the  news  of  the  loss 
of  Charleston,  the  effect  of  which  on  the  timid 
court  was,  in  Jay's  words,  "  as  visible  the  next 
day  as  that  of  a  bad  night's  frost  on  young 
leaves."  So  matters  were  again  for  months  at 
a  standstill.  Meantime,  no  news  had  come 
from  friends  in  America,  the  letters  being  inter- 
cepted or  suppressed  ;  and  his  own  despatches 
Jay  had  to  send  down  by  his  secretary  to  the 
sea-board  to  be  given  personally  to  the  captain 
of  any  casual  American  vessel.  His  only  child 
had  b#en  left  in  America,  and  a  baby,  born  in 
Spain,  lived  scarcely  a  month.  Jay  had  to  fol- 
low the  wandering  court  from  town  to  town,  to 
Madrid,  to  Aranjuez,  to  San  Ildefonso,  and  trav- 
eling was  so  expensive  that  Mrs.  Jay  had  gener- 
ally to  be  left  behind  at  the  capital.  When  his 
letters  do  come  they  contain  little  to  cheer. 
Secretary  Thompson  writes  that  by  March, 
1780,  the  paper  dollar  had  fallen  to  a  penny  in 
value,1  a  depreciation  by  which  the  Jay  family 
suffered  severely :  and  his  brother  Frederick 
tells  how  a  party  of  "  De  Delancey  Boys  "  broke 
into  his  father's  house,  stole  money  and  plate, 
and  slightly  wounded  Mrs.  Frederick  Jay  with 
a  bayonet.2  Though  greatly  straitened,  Jay 

1  From  Chas.  Thompson,  Oct.  12,  1780,  Jay  MSS. 

2  From  Fred.  Jay,  Nov.  8,  1781,  Jay  MSS. 


136  JOHN  JAY. 

sent  home  gifts  of  the  most  useful  things  he 
could  think  of,  and  found  time  to  discuss  and 
provide  for  the  old  family  servants. 

In  his  official  family  also  there  was  unhappi- 
ness :  his  secretary  proved  untrustworthy,  and  a 
young  man  in  his  charge,  from  a  perverse  spirit 
of  malignant  mischief,  increased  the  discord.  A 
letter  from  Jay  to  Franklin,  introducing  Prince 
Masserana,  gives  a  glimpse  of  the  lonely  life  he 
had  at  Madrid :  "  I  am  much  indebted  to  the 
politeness  of  this  nobleman,  and  except  at  his 
table  have  eaten  no  Spanish  bread  that  I  have 
not  paid  for  since  my  arrival  in  this  country."  l 
As  discomforts  multiplied,  Jay  became  more 
and  more  proud  and  reserved.  "  I  never  find 
myself,"  he  confessed  to  Franklin,  "less  dis- 
posed to  humility  or  improper  compliances  than 
when  fortune  frowns."  The  Marquis  d'Aranda 
complained  of  Jay,  indeed,  in  a  private  letter 
that  was  quoted,  "  qu'il  parait  toujours  fort 
boutonne,"  —  a  curious  complaint  to  come  from 
a  Spanish  nobleman.  In  fact,  Jay  had  a  great 
admiration  for  the  man  and  the  statesman,  call- 
ing him  the  ablest  Spaniard  he  had  met :  "  I 
think  it  probable,"  was  his  characteristic  acknowl- 
edgment of  the  marquis's  criticism,  "  we  shall  be 
yet  on  more  familiar  terms,  for  though  I  will 

1  To  Franklin,  Oct.  25,  1780,  Hale,  Franklin  in  France,  \. 
416. 


MINISTER   TO  SPAIN.  137 

never  court,  yet  I  shall  with  pleasure  cultivate 
his  acquaintance." l  Delay  in  the  payment  of 
his  salary  helped  to  make  the  unfortunate  en- 
voy's situation  seem  at  times  intolerable :  "  to 
be  obliged  to  contract  debts  and  live  on  credit 
is  terrible,"  2  is  a  painful  cry,  wrung  from  the 
heart  of  a  man  like  Jay.  Some  distractions 
there  were  of  course,  though  we  do  not  know 
whether  Jay  continued  his  sight-seeing  so  vig- 
orously as  during  the  first  summer  in  Spain. 
Then,  in  July,  he  went  with  Brockholst  Living- 
ston to  a  bullfight,  when  "  one  of  the  knights 
who  fought  on  horsejback  was  killed  and  two 
wounded ; "  and  every  evening  that  summer 
there  was  a  comedy,3  which  they  doubtless  occa- 
sionally attended. 

In  the  spring  of  1781  the  French  ambassa- 
dor surprised  Jay  by  suggesting  that  the  nego- 
tiations failed  because  Florida  Blanca  expected 
further  overtures  about  the  Mississippi,  and  be- 
lieved Jay's  discretion  to  be  greater  than  he 
admitted.4  What  was  meant  did  not  become 
clear  till  some  weeks  later,  when  directions  came 

1  To  Franklin,  Feb.  21,  1781,  Hale,  Franklin  in  France, 
i.  422. 

2  To  Franklin,  April  1,  1781,  Hale,  Franklin  in  France,  i. 
426. 

3  J.  B.  Livingston  to  Gov.  Livingston,  July  12,  1780,  Mag. 
Am.  Hist.,  iii.  512. 

4  Sparks,  Dipt.  Corr.  of  Amer.  Rev.,  vii.  456,  457. 


138  JOHN  JAY. 

from  Congress  to  insist  no  longer  on  the  free 
navigation  of  the  Mississippi  below  the  thirty- 
first  degree  of  latitude.  A  month  more  and 
Jay's  instructions  were  still  further  modified, 
permitting  him  to  negotiate  without  reference 
to  the  treaties  with  France.  The  Southern 
States  chiefly  interested  in  the  fate  of  the  Mis- 
sissippi, Virginia,  Georgia  and  South  Carolina, 
had  indeed  changed  their  policy  radically,  — 
partly  persuaded  by  the  infinitely  various  argu- 
ments of  Luzerne,  partly  because  English  suc- 
cesses in  the  South  made  them  fear  a  permanent 
loss  of  territory  if  Spain  did  not  help  them,  or  if 
a  peace  were  suddenly  negotiated  on  the  basis 
of  uti  possidetis,  before  the  British  troops  had 
withdrawn.  Jay  disapproved  of  these  new  in- 
structions, and  said  so.  Spain,  he  argued,  was 
now  at  war  for  her  own  purposes,  and  would  be 
induced  by  no  cession  to  be  more  liberal  or  to 
fight  harder.  He  tried,  however,  to  renew  ne- 
gotiations. Better  wait  for  a  general  peace,  was 
the  reply  he  got.  Pressure  of  business  was 
also  a  standing  excuse.  At  last  he  was  asked 
to  draft  propositions  with  a  view  to  a  treaty 
of  alliance  between  Spain  and  the  States,  and 
he  did  so  instantly.  But  the  abandonment  of 
the  right  to  navigate  the  Mississippi  he  care- 
fully made  void  if  the  alliance  were  postponed 
to  a  general  peace.  To  these  propositions  no 


MINISTER    TO  SPAIN.  139 

answer  was  ever  given.  "  This  court,"  Jay 
wrote  to  Franklin  in  November,  1781,  "  contin- 
ues to  observe  the  most  profound  silence.  .  .  . 
Heretofore  the  minister  was  too  sick  and  too 
busy ;  at  present  his  secretary  is  much  indis- 
posed." 1  In  the  autumn  of  1781  a  person  was 
appointed  to  treat  with  Jay,  but  when  applied 
to  he  never  had  instructions.  In  the  spring  of 
1782  Jay  proposed  to  demand  a  categorical 
answer,  but  was  dissuaded  by  the  French  am- 
bassador.2 He  determined  to  go  to  the  Escurial 
and  urge  his  business,  but  again  the  French 
ambassador  bade  him  "  wait  with  patience." 3 
Thus  month  after  month  was  wasted,  as  Jay 
gloomily  expressed  it,  in  "  expectation,  suspense, 
and  disappointment."  Political  disturbances  in 
the  Spanish  colonies  might  account  for  some 
coolness  towards  the  American  envoy  at  the 
close  of  1781,  but  the  real  explanation  of  Jay's 
ill-treatment  was  the  positive  unfriendliness  felt 
by  Spain  for  the  Americans,  —  detestation  of 
them  as  republicans,  and  jealousy  of  them  as 
territorial  rivals.  In  such  circumstances  a  treaty 
such  as  Jay  was  intrusted  to  make  was  out  of 
the  question. 

The  mediation  proffered  about  this  time  by 

1  Nov.  21,  1781,   Jay  MSS. 

2  Sparks,  Dipl.  Corr.  of  Amer.  Rev.,  viii.  11. 
8  Ibid.,  p.  33. 


140  JOHN  JAY, 

the  Empress  of  Russia  and  the  Emperor  of  Ger- 
many was,  in  Jay's  opinion,  unlikely  to  be  ef- 
fectual ;  indeed,  he  thought  as  did  Vergennes, 
that  those  powers  were  more  friendly  to  Eng- 
land than  to  France.1  What  he  wished  was  a 
close  defensive  alliance  between  France,  Spain, 
and  America,  an  alliance  that  Holland  might 
probably  be  induced  to  join.  Then  a  vigorous 
campaign  "  would  give  us  a  peace  worth  our 
acceptance."  At  the  moment,  he  saw  that  Spain 
wanted  Gibraltar  and  Jamaica,  and  was  far 
from  being  tired  of  the  war ;  and  he  anxiously 
sounded  Montmorin  as  to  the  steps  France  was 
taking  to  influence  Spain  towards  an  American 
alliance.  On  this  point  Montmorin,  though 
"  well  attached  to  the  American  cause,"  showed 
a  "  mysterious  reserve."  Yet  Jay  still  had  "  full 
confidence  in  the  friendship  of  France ;  "  though 
he  was  gradually  learning  to  take  an  indepen- 
dent stand.  "  In  politics,"  he  explained  to 
Franklin,  "  I  depend  upon  nothing  but  facts, 
and  therefore  never  risque  deceiving  myself  or 
others  by  a  reliance  on  professions  which  may 
or  may  not  be  sincere."2  In  reality,  France 
was  indignant  at  the  neglect  of  America  by 
Spain,  at  her  indifference  to  American  credit,  at 
her  unwillingness  to  compromise.  Spain  ought 

1  To  B.  Franklin,  Aug.  20,  1781,  Jay  MSS. 

2  Ibid.,  loc.  cit. 


MINISTER   TO  SPAIN.  141 

to  try  more  to  gain  the  friendship  of  the  Ameri- 
cans, said  Montmorin  in  June,  1782,  for  fear  of 
their  considering  a  separate  peace,  especially  if 
their  independence  is  assured  and  a  peace  comes 
to  be  hindered  only  by  the  demands  of  Spain. 
But,  he  added,  this  court  of  Spain  thinks  of 
nothing  but  the  chance  of  winning  Gibraltar.1 

The  hands  of  France,  however,  were  tied  by 
the  treaty  of  Aranjuez.  France  was  committed 
to  a  continuation  of  the  war  till  Spain  should 
get  Gibraltar,  and  meantime  American  indepen- 
dence became  a  subsidiary  object.  "  Spain  knew 
her  own  business  and  interest,  and  France  had 
no  right  to  press  her  on  such  points ;  "  such  was 
Vergennes'  final  answer  to  Jay  through  Mont- 
morin. At  last  Jay  told  the  latter  openly  that 
he  thought  England  would  be  the  first  nation 
to  acknowledge  American  independence,  for 
France  did  not  wish  "  to  see  us  treated  as  inde- 
pendent by  other  nations  until  after  a  peace, 
lest  we  should  become  less  manageable  in  pro- 
portion as  our  dependence  upon  her  shall  di- 
minish ;  "  and  the  count  waived  the  subject. 

In  May,  1782,  Jay  was  invited  to  dinner  by 
.Count  Florida  Blanca,  but  the  invitation  was 
soon  explained  to  have  been  a  mistake,  and 
when  renewed  to  Jay  "  as  a  private  gentleman  " 
was  very  properly  declined.  This  was  the  last 
1  Montmorin  to  Vergennes,  June  8,  1782,  De  Circourt,  iii.  45. 


142  JOHN  JAY. 

mortification   Jay  was  destined  to   suffer  from 
the  Spanish  court. 

Franklin  and  Jay  had  long  been  intimate 
friends  in  spite  of  the  difference  of  forty  years 
in  their  ages.  In  the  spring  of  1781,  when 
Franklin,  in  a  moment  of  discouragement,  sent 
to  Congress  his  resignation,  he  urged  Jay  to  take 
his  place  at  Paris,  and  suggested  his  writing  to 
his  friends  "  accordingly."  l  But  Jay  thought 
the  change  impolitic,  wrote  home  to  that  effect, 
and  Franklin's  resignation  was  not  accepted.2 
In  the  following  summer  Jay,  whom  the  influ- 
ence of  Luzerne  had  retained  in  Spain  when 
Congress  thought  of  recalling  him,  Franklin, 
Laurens,  and  Jefferson,  had  been  joined  with 
Adams  as  commissioners  for  a  general  peace ; 
and  now  in  April,  1782,  while  Laurens  was  a 
prisoner  on  parole,  Adams  at  The  Hague,  and 
Jefferson  still  in  America,  Franklin  summoned 
Jay  to  his  assistance :  "  here,"  he  wrote  in  Paris, 
"you  are  greatly  wanted,  for  messengers  begin 
to  come  and  go,  and  there  is  much  talk  of  a 
treaty  proposed ;  but  I  can  neither  make  nor 
agree  to  propositions  of  peace  without  the  as- 
sistance of  my  colleagues.  .  .  .  You  would  be 
of  infinite  service."3  Jay  at  once  asked  the 

1  From  B.  Franklin,  April  12,  1781,  Jay  MSS. 

2  To  B.  Franklin,  Aug.  20,  1781,  Jay  MSS. 

3  From  B.  Franklin,  April  22,  1782,  Jay's  Jay,  ii.  94. 


MINISTER   TO  SPAIN.  143 

advice  of  Montmorin,  who,  on  consulting  Flor- 
ida Blanca,  made  no  objection :  Jay  could  treat 
with  Aranda,  then  the  Spanish  ambassador  at 
Paris,  and,  in  any  case,  Mr.  Carmichael  might 
stay  behind  and  act  in  Jay's  stead.  "  Jay  has 
doubtless  made  up  his  mind,"  Montmorin  con- 
cluded, "to  leave  Spain,  which  he  dislikes  ex- 
tremely, and  which,  as  a  matter  of  fact,  must 
have  been  very  disagreeable  to  him  for  more 
than  two  years  past." l  Without  delay  Jay 
shook  from  his  feet  the  unfriendly  dust  of 
Madrid,  and  started  for  Paris.  Mrs.  Jay  fell 
sick  on  the  journey  with  fever  and  ague,  and 
as  "the  posthorses  at  the  different  stages  had 
been  engaged  for  the  Comte  du  Nord,"  who  had 
left  Paris  with  a  great  retinue,  "  they  did  not 
reach  their  destination  till  June  23d.2 

1  Montmorin  to  Vergeunes,   May  5,  1782,  De  Circourt,  iii. 
343. 

2  Sparks,  Dipl.  Corr.  of  Amer.  Rev.,  viii.  113. 


CHAPTER   VII. 

NEGOTIATOR     OF     PEACE  :     THE     ATTITUDE     OF 
FRANCE   IN    1782. 

THE  instructions  to  the  American  commis- 
sioners, appointed  to  treat  with  Great  Britain, 
were  based  on  the  theory  that,  without  the  ac- 
tive cooperation  of  the  French  court,  the  States 
would  be  at  the  mercy  of  England,  that  France 
was  engaged  to  procure  them  the  best  terms 
obtainable,  and  that  gratitude  and  policy  alike 
necessitated  absolute  confidence  in  the  Count  de 
Vergennes,  French  minister  for  foreign  affairs. 
For  the  successful  conduct  of  the  negotiations 
it  was  essential  for  the  commissioners  to  deter- 
mine whether  this  theory  of  Congress  was  cor- 
rect. The  facts  now  known  show  us  that  it  was 
incorrect. 

France,  by  her  treaty  with  Spain,  had  formed 
obligations  inconsistent  with  the  interests  of 
the  States.  By  it  the  object  of  the  war  had 
been  changed  from  securing  independence  for 
America  to  winning  Gibraltar  for  Spain,  from 
that  which  was  already  within  the  grasp  of  the 


NEGOTIATOR  OF  PEACE.  145 

allies  to  .that  which  was,  in  any  case,  a  remote 
contingency,  and  was,  as  it  happened,  an  impos- 
sibility; and  all  this  had  been  brought  about 
without  the  knowledge  of  the  country  most 
vitally  interested  in  the  war,  the  one  country 
whose  existence  as  a  nation  was  at  stake.  The 
treaty  was  very  possibly  unavoidable,  as  is 
urged  by  the  latest,  best  informed,  and  most 
voluminous  apologist  of  France,  M.  Doniol.1 
But  whether  such  was  the  case  or  not  is  im- 
material from  the  American  point  of  view ;  so 
long  as  the  facts  were  withheld  from  Congress 
the  conduct  of  Vergennes  was  disingenuous,  and 
the  American  ministers,  so  far  as  they  suspected 
or  knew  the  facts,  were  no  longer  justified  in 
intrusting  to  him  the  fortunes  of  their  country. 

It  was,  however,  not  merely  regard  for  the 
prejudices,  or  even  the  "  gigantic  pretensions  " 
of  Spain  that  made  France  an  inefficient  friend 
to  America  in  reaping  the  fruits  of  the  Revolu- 
tion ;  her  attitude  in  1782  was  perfectly  con- 
sistent with  what  had  been  the  secret  policy  of 
her  government  since  before  the  Declaration 
of  Independence.  These  matters  may  be  dis- 
cussed now  without  the  bitterness  and  partisan 
feeling  which  the  discussion  excited  in  1783 
and  in  1798.  We  no  longer  confound  the 

1  La  Participation  de  la  France  dans  V  etablissement  de  Fin- 
dependance  des  Etats  Unis,  Paris,  1783. 


146  JOHN  JAY. 

morality  of  a  people  with  the  policy  of  its  gov- 
ernment, —  even  in  a  democracy ;  and  such  con- 
fusion would  be  still  more  unjust  in  the  case  of 
a  non-representative  government  of  the  eight- 
eenth century,  above  all  in  the  France  of  Louis 
XVI.  Jay  himself  made  no  such  error ;  but 
carefully  discriminated  between  the  French  peo- 
ple and  the  French  government:  "it  is  true," 
he  said,  "  that  I  returned  from  that  country  to 
this,  with  opinions  unfavorable  to  their  court ; 
but  not  only  without  a  wish  unfriendly  to  them, 
but,  on  the  contrary,  with  sentiments  of  good 
will  and  regard." 1  "  It  is  not,"  he  added, 
"from  the  characters  of  this  or  that  adminis- 
tration or  prevailing  party  in  the  government 
that  the  character  of  a  nation  is  to  be  in- 
ferred." 2  Even  though  the  official  conduct  of 
a  nation,  in  international  negotiations,  is  crudely 
selfish,  and  the  language  of  its  ministers  is  an 
effectual  concealment  of  the  truth,  neither  peo- 
ple nor  ministers  are  necessarily  blamable ;  for 
the  first  duty  of  a  nation  is  self-preservation, 
and  the  first  duty  of  a  negotiator  is  to  his  own 
country,  as  is  a  lawyer's  to  his  client.  It  cer- 
tainly can  hardly  be  said  that  now,  after  the 
lapse  of  a  hundred  years,  controversies  between 
nations  are  ever  adjusted  on  altruistic  princi- 

1  To  R.  G.  Harper,  Dec.  21,  1795,  Jay's  Jay,  ii.  263. 

2  Jay's  Jay,  ii.  262. 


NEGOTIATOR   OF  PEACE.  147 

pies,  from  motives  purely  of  gratitude  and  af- 
fection ;  and  if  such  is  the  fact,  it  is  no  longer 
possible  honestly  to  take  a  sentimental  view  of 
the  peace  negotiations  of  1783. 

As  early  as  1775  M.  Malouet,  the  French 
minister  of  the  navy,  was  told  that  the  people 
wished  France  to  interfere  in  behalf  of  the  col- 
onies ;  and  he  at  once  replied  in  the  true  spirit 
of  the  old  regime,  that  it  was  as  illogical  as 
it  was  dangerous  for  an  absolute  monarchy  to 
place  itself  at  the  head  of  a  democratic  revolu- 
tion.1 Such,  too,  was  the  opinion  of  the  king, 
who  was  afraid  of  the  effect  upon  his  own  sub- 
jects of  a  bad  example ; 2  and  in  his  policy  of 
neutrality  he  was  supported  by  Maurepas  and 
Necker.  If  Vergennes  thought  otherwise,  it 
was  certainly  from  no  love  of  republican  in- 
stitutions, of  the  sentiment  of  liberty,  or  of  the 
Americans  personally.  "  With  respect  to  prin- 
ciples," wrote  Tom  Paine,  before  he  became  a 
hireling  of  Luzerne,  "  Vergennes  was  a  despot."  3 
He  was  the  steady  opponent  of  the  more  liberal 
ministers  of  the  king,  Choiseul.  Turgot,  and 
Necker;  he  hated  such  revolutionary  ideas  as 
liberty  of  the  press,  liberty  of  speech,  and  par- 
liamentary government,  and  accordingly  he  de- 

1  Memoires,  iii.  335. 

2  Soulavie,  Louis  XV.,  iii.  409. 

3  Eights  of  Man,  1791,  i.  92. 


148  JOHN  JAY. 

tested  the  Americans  as  "  rebels." l  But  the 
deepest  feeling  in  the  minister's  heart  was  hos- 
tility to  England,  and  a  patriotic  longing  to 
wipe  out  the  disgrace  of  the  treaty  of  1763. 
"  The  inveterate  enmity  of  that  power  to  us," 
he  wrote  in  a  memoir  to  the  king  in  1775, 
"  makes  it  our  duty  to  lose  no  opportunity  for 
weakening  it.  The  independence  of  the  insur- 
gent colonies  must  therefore  be  encouraged." 
"  I  hope  to  live  long  enough,"  he  said  again  a 
little  later  in  private,  "  to  see  England  humil- 
iated and  American  independence  acknowl- 
edged."2 The  profession  of  faith  he  made  to 
Montmorin  was  doubtless  perfectly  honest: 
"My  country's  good  is  dear  to  me.  I  am  no 
less  devoted  to  that  of  Spain  ;  to  contribute  to 
the  one  and  the  other,  that  is  all  my  ambi- 
tion ;  "  and  his  regard  for  the  interests  of  Spain 
may  well  have  come  from  a  belief  in  the  im- 
portance of  the  closest  union  between  the  two 
branches  of  the  House  of  Bourbon,  without  that 
personal  motive,  which  has  been  suggested,  that, 
not  being  of  noble  lineage,  he  was  ambitious  to 
die  a  grandee  of  Spain. 

The  policy  of  France  was  much  discussed  in 
secret    memoirs   and   letters    to   the    king,  but 

1  Tratchevsky,  La  France  et  V  Allemagne  sous  Louis  XVI-> 
p.  18. 

2  Moniteur  Universe!,  1789,  i.  45  n. 


NEGOTIATOR    OF  PEACE.  149 

always,  very  naturally,  with  a  single  eye  to 
French  interests.  Turgot,  early  in  the  Kevolu- 
tion,  in  an  elaborate  paper,  urged  that  the  best 
thing  for  France  would  be  a  long  English- 
American  war  ending  in  victory  for  England, 
because  nothing  could  be  more  enfeebling  to  a 
military  power  than  to  try  to  govern  by  force 
so  distant  a  country.  The  worst  event  for 
France  would  be  a  speedy  ending  of  the  war, 
no  matter  who  won,  for  that  would  leave  the 
troops  of  England  free  to  be  turned  against 
her  European  foes.  Such  was  the  state  of 
affairs,  when,  after  having  received  vague  en- 
couragement from  the  French  emissary,  Bon- 
vouloir,  the  Secret  Committee  for  Foreign  Af- 
fairs in  Congress  sent  Deane,  a  gentleman  of 
means  and  education,  disguised  as  a  merchant, 
to  sound  the  intentions  of  the  court,  and  to  pro- 
cure money  and  arms.  Deane  engaged  the  ro- 
mantic imagination  and  ingenious  pen  of  Beau- 
marchais,  who,  by  a  series  of  adroitly  worded 
memoirs,  and  seconded  by  the  good  will  of  de 
Vergennes,  persuaded  the  king  that  peace  could 
be  preserved  only  by  preventing  the  complete 
triumph  of  either  England  or  the  colonies,  and 
that,  to  effect  this,  sufficient  aid  must  be  given 
the  Americans  to  "  put  their  forces  on  an  equal- 
ity with  those  of  England,  but  nothing  be- 


150  JOHN  JAY. 

yond." l  From  that  time  the  king  was  con- 
vinced, but  against  his  will,  or  rather  against 
his  instincts  and  his  conscience,  and  whenever 
documents  relating  to  the  war  that  followed 
were  given  him  to  sign,  he  is  said  to  have  com- 
plained pathetically,  "  Must  I  sign,  for  reasons 
of  state,  what  I  don't  think  right?"2  By 
secret  grants  from  the  treasuries  of  France  and 
Spain,  on  the  suggestion  of  de  Vergennes,  Beau- 
marchais  was  enabled,  through  the  fictitious 
firm  of  Rodrigue,  Hortalez  et  Cie.,  to  supply  the 
colonies  with  much  needed  war  material  in  ex- 
change for  promised  cargoes  of  tobacco,  which, 
however,  never  came ;  and  within  a  year  he 
even  succeeded  in  sending  them  ships  of  war 
and  officers. 

After  the  Declaration  of  Independence,  Deane, 
Franklin,  and  Arthur  Lee  were  commissioned 
to  attend  to  the  affairs  of  the  United  States 
in  Europe.  In  December  Franklin  landed  at 
Nantes,  to  the  great  excitement  of  the  popu- 
lace, and  his  entry  into  Paris  was  like  a  royal 
triumph.  Then  he  retired  to  Passy,  and  there 
lived  a  life  so  happy  in  winning  and  keeping 
public  affection,  that  it  was  well  described  by 
Cabanis  as  "  a  masterpiece  of  art." 

In  February,  1777,  the  commissioners  agreed 

1  Feb.  29,  1776,  De  Lome'nie,  Life  of  Beaumarchais,  iii.  122. 

2  Moniteur  Universel,  1789,  i.  45  n. 


NEGOTIATOR  OF  PEACE.  151 

to  separate,  and  Franklin  remained  attached  to 
the  court  of  France,  whose  vacillation  was 
suddenly  ended  by  the  unexpected  events  of 
the  war  in  America.  It  had  been  doubted 
whether  the  colonies  could  withstand  a  serious 
campaign.  But  the  capitulation  of  Burgoyne 
was  a  complete  answer  to  all  doubters,  and 
with  the  prospect  of  success  France  saw  her 
chance  for  intervention.  When  it  was  known 
that  England  was  proposing  terms  of  reconcil- 
iation, though  it  was  pardon  only  that  Lord 
Howe  had  to  offer,  and  not  redress  of  griev- 
ances, de  Vergennes  could  wait  no  longer. 
The  terms  proposed  were,  as  he  thought,  so 
clearly  hostile  to  France,  —  though  it  is  not 
obvious  how,  —  that  no  time  was  to  be  lost  in 
preventing  their  acceptance.  American  inde- 
pendence moreover,  he  was  convinced,  would 
be  useful  to  France.  For  these  various  rea- 
sons, as  he  explained  to  M.  Gerard,1  the  minis- 
ter opened  negotiations  at  Paris  for  a  treaty 
of  amity  and  commerce,  and  for  a  treaty  of 
eventual  alliance.  The  treaty  of  commerce 
recognized  the  United  States  as  independent 
in  fact,  but,  except  for  its  friendly  reciprocity, 
was  not  historically  important ;  the  treaty  of 
alliance,  however,  provided  for  the  war  with 
England  that  was  sure  to  be  forced  or  pre- 
1  Instructions  to  Gerard,  De  Circourt,  iii.  255,  256. 


152  JOHN  JAY. 

cipitated  by  the  acknowledgment  of  indepen- 
dence. The  end  of  the  alliance,  said  the  treaty, 
is  to  maintain  the  independence  of  the  United 
States. 

These  treaties  were  for  years  afterwards  re- 
ferred to  by  France  as  a  singular  instance  of 
generosity  to  the  helpless,  friendless  colonists. 
And  for  years  it  seems  to  have  been  a  general 
opinion  that  the  treaty  of  alliance  bound  the 
United  States  to  France  by  ties  unusually  con- 
fidential, close,  and  permanent.  It  did,  indeed, 
result  in  America  receiving,  to  promote  the 
common  cause  of  France^  Spain,  and  the  col- 
onies, active  help  from  France  in  men  and 
money,  at  a  time  when  threatening  bankruptcy 
and  despair  made  such  help  priceless.  By  such 
timely  aid  France  may  be  said  to  have  in  fact 
enabled  the  States  to  win  what  they  did  win  at 
the  peace  ;  and  all  this  aid,  comfort,  and  good 
will  may  well  have  been  an  expression,  far 
truer  than  the  official  French  chicanery  during 
the  negotiations,  of  the  feelings,  the  vague  senti- 
ments and  longings  of  the  French  people,  dumb 
as  yet  and  not  self-conscious,  but  who  cheered 
when  they  saw  the  white  head  of  Franklin,  and 
in  a  few  years'  time  made  Europe  ring  with 
watchwords  in  part  caught  from  him.  The 
final  benefit,  however,  guaranteed  to  the  col- 
onies by  the  treaty  was  curiously  meagre  :  "  the 


NEGOTIATOR  OF  PEACE.  153 

treaty,"  said  de  Vergennes,  "only  guarantees 
[the]  independence  [of  the  Americans]  and 
their  eventual  conquests ;  "  1  and  in  return  for 
this  the  Americans  promised  not  to  make  peace 
with  England  without  securing  their  indepen- 
dence. This  was  the  quid  pro  quo  ;  2  and  these 
were  all  the  mutual  covenants  of  the  two  na- 
tions, so  far  as  they  had  actual  reference  to  the 
making  of  a  peace.  Such  certainly  was  the 
French  interpretation  of  the  spirit  and  words 
of  the  treaty.  Independence  was  insisted  on, 
because  de  Vergennes  thought  with  Lord  Chat- 
ham and  George  III.,  that  its  acknowledgment 
would  be  the  beginning  of  the  end  of  the  Brit- 
ish empire.  Yet  even  independence  need  not  be 
expressly  acknowledged;  a  tacit  recognition  of 
it  would  satisfy  both  the  terms  of  the  treaty  and 
the  interests  of  France.3 

If  the  French  government  had  allied  itself  to 
the  struggling  colonies  from  sympathy  with  their 
motives  and  pity  for  their  wrongs,  it  would  nat- 
urally take  a  friendly  interest  in  their  ambition 
and  effort  to  establish  themselves  so  as  to  secure 
a  great  and  peaceful  future.  But  even  in  the 
instructions  to  Gerard,  the  first  French  minister 

1  Vergennes  to  Luzerne,  Sept.  25,  1779. 

2  Montmorin  to  Florida  Blanca,  Oct.  15,  1778,  Doniol,  iii. 
522. 

3  Ge'rard  to  Congress,   July  14,  1779,  S.  J.,  ii.    198 ;  Ver- 
gennes to  Luzerne,  Sept.  25,  1779. 


154  JOHN  JAY. 

to  the  States,  de  Vergennes  explains  and  em- 
phasizes the  indifference,  or  rather  the  opposi- 
tion, of  France  to  every  claim  which  our  people 
really  believed  just,  and  which  events  have 
proved  to  have  been  essential  to  their  welfare. 
The  principle  of  French  policy  was  that,  the  in- 
dependence of  the  States  once  established,  they 
should  be  so  hemmed  in  by  foreign  powers,  and 
so  limited  in  size,  that  fear  of  English  aggres- 
sion should  keep  them  permanent  dependents  on 
France.  For  this  reason  England  was  to  retain 
Canada.1  The  Floridas  were  to  go  as  Spain 
should  choose ;  and  as  to  the  navigation  of  the 
Mississippi,  if  Spain  should  insist,  the  Ameri- 
cans were  to  be  discreetly  prepared  to  give  it 
up,2  and  to  trust  to  the  "  magnanimity  "  of  the 
king  of  Spain.3  Luzerne  was,  indeed,  directed 
to  "encourage  Congress  to  confide  in  Spain," 
and  this  long  after  the  treaty  of  Aranjuez,  when 
de  Vergennes  knew  that  Spain  cared  for  nothing 
in  the  war  but  her  own  selfish  interests,  which 
she  regarded  as  opposed  to  American  claims, 
even  to  American  welfare.  There  was  also  no 
necessity,  Gerard  was  instructed,  for  the  Amer- 
icans to  reach  as  far  north  as  the  fisheries  of 

1  De  Circourt,  iii.  255,  310. 

2  Vergennes  to   Ge'rard,  Aug.    26,    1778,   Doniol,  iii.  569, 
578. 

8  Vergennes  to  Luzerne,  Sept.  25,  1779. 


NEGOTIATOR   OF  PEACE.  155 

Newfoundland.  "  The  fishery  along  the  coast," 
wrote  de  Vergennes  to  Luzerne,  "  belongs  .  .  . 
exclusively  to  England,  France  participating  by 
special  treaties.  The  Americans  have  forfeited 
their  share  in  British  fisheries  by  declaring  their 
independence  of  England.  .  .  .  The  United 
States  should  .  .  .  not  grudge  France  the  slight 
advantage  of  extending  her  fisheries."  l  France 
and  England,  Luzerne  very  naturally  suggested 
some  years  later,  should  guarantee  the  fishery  to 
each  other.2  The  selfish  motive  here  disclosed 
leads  one  to  wonder  whether  the  readiness  with 
which  France  yielded  all  the  western  territory 
to  Spain  was  not  half  justified  by  a  secret  con- 
sciousness that,  if  desirable,  a  cession  of  it  might 
later  be  induced  by  proper  pressure,  as  was  in 
due  time  the  cession  by  Spain  to  France  of 
Louisiana. 

France,  then,  had  many  purposes  concerning 
America  to  effect  at  the  eventual  peace,  —  pur- 
poses the  precise  opposite  of  the  claims  dearest 
to  the  Americans  themselves,  her  allies.  This 
policy  was  tortuous  and  difficult,  and  imposed 
upon  France,  so  far  as  possible,  the  task  of  con- 
trolling the  selection  of  the  American  commis- 
sioners, and  of  dictating  their  instructions.  In 
a  word,  it  was  necessary  for  France  to  control 

1  Verg-ennes  to  Luzerne,  Sept.  25,  1779. 

2  Luzerue  to  Vergennes,  Jan.  11,  1782. 


156  JOHN  JAY. 

completely  the  negotiations  for  peace.  To  this 
end,  Gerard,  Marbois,  and  Luzerne  employed 
all  the  arts  of  the  European  diplomacy  of  the 
period,  dissimulation,  flattery,  what  Flossan  calls 
the  "  mensonge  politique"  and  what  de  Ver- 
gennes  refers  to  as  "  donatifs"  and  M.  de  Cir- 
court  as  "  secours  temporaires  en  argent."  "  His 
Majesty,"  wrote  de  Vergennes  to  Luzerne,  "  fur- 
ther empowers  you  to  continue  the  donations 
which  M.  Gerard  has  given  or  promised  to  va- 
rious American  authors,  and  of  which  he  will 
surely  have  handed  you  a  list."  This  list  has 
not  yet  been  disclosed,  and  the  topic  is  one 
which  even  M.  de  Circourt  shows  a  desire  to 
avoid.  "  This  delicate  subject,"  he  says,  "  has 
been  even  in  my  time  the  subject  of  criticisms 
and  controversies  into  which  we  need  not  en- 
ter." i 

These  methods  met  with  a  success  that  can  be 
explained  only  by  the  surprisingly  facile  charac- 
ter of  some  members  of  Congress,  and  the  almost 
incredible  simple-mindedness  and  credulity  of 
others.  Congress,  in  those  early  days,  as  pic- 
tured in  the  private  correspondence  of  the 
French  agents  and  ministers,  does  not  altogether 
represent  that  Amphictyonic  Council  of  honora- 
ble unselfish  patriots  into  which  it  has  now  be- 
come transfigured  by  the  magic  consecration  of 

1  De  Circourt,  iii.  283. 


NEGOTIATOR   OF  PEACE.  157 

time.  Some  thirty  years  afterwards,  Gouverneur 
Morris  was  sitting  over  the  polished  mahogany 
at  Bedford  with  John  Jay,  when  he  suddenly 
ejaculated  through  clouds  of  smoke,  "  Jay,  what 

a  set  of  d d  scoundrels  we  had  in  that  second 

Congress."  "  Yes,"  said  Jay,  "  that  we  had," 
and  he  knocked  the  ashes  from  his  pipe.1  "  The 
tone  of  Congress,"  says  Mr.  C.  F.  Adams,  in 
his  review  of  the  situation,  "  had  gradually  be- 
come lowered.  The  people  were  suffering  from 
exhaustion  by  the  war,  especially  in  the  Southern 
States."  2 

It  thus  became  possible  for  the  accomplished 
envoys  of  the  French  court  gradually  to  create  a 
party  devoted  wholly  to  French  interests.  "  I 
can  do  what  I  please  with  them,"  wrote  Bon- 
vouloir  of  the  members  of  Congress  in  1775.3 
Gerard,  also,  so  soon  as  he  was  appointed  in 

1778,  set  himself  to  persuade  the  public  of  the 
disinterestedness  of  France  by  suggesting  suita- 
ble arguments  to  writers  for  the  newspapers  who 
signed  themselves  often  by  such  names  as  Gallo- 
Americanus  and  Americanus.4     Tom  Paine  was 
engaged  for  a  thousand  dollars  a  year  to  inspire 
"  the  people  with  sentiments  favorable  to  France 

1  Family  tradition. 

2  Works  of  John  Adams,  i.  341. 
8  Durand,  p.  10. 

4  Gerard  to  Vergennes,  April  11,  Sept.  1,  1778 ;  May  29, 

1779,  Stevens  MSS. 


158  JOHN  JAY. 

and  the  alliance,"  l  and  Paine  was  then  secre- 
tary to  the  Committee  on  Foreign  Affairs.  In 
no  long  time  Luzerne  was  a  power  in  the  house. 
In  the  autumn  of  1781  K.  K.  Livingston  was 
elected  to  the  new  secretaryship  for  foreign  af- 
fairs. "  He  is  not  ignorant,"  wrote  Luzerne  to 
de  Vergennes  on  November  1st,  "  of  the  part  I 
took  in  his  election."  2 

Before  Adams  was  chosen  to  treat  for  peace 
with  England,  his  instructions  were  carefully 
adapted  to  suit  the  views  of  Luzerne.  The  first 
definite  statement  of  the  boundaries  claimed  by 
the  States,  as  reported  by  a  committee  of  Con- 
gress, February  23,  1779,  was :  Northerly,  the 
ancient  limits  of  Canada  to  Lake  Nepissing, 
thence  W.  to  the  Mississippi ;  Westerly,  the 
Mississippi.  The  boundaries  specified  in  the 
ultimata  adopted  March  19th  were  substantially 
the  same,  that  on  the  south,  and  for  the  most 
part  that  on  the  north,  being  identical  with  those 
actually  acquired  at  the  peace.  The  instructions 
to  Adams,  resolved  upon  August  14,  1774,  were 
to  the  same  effect.  But  Luzerne  was  alert  and 
energetic  and  did  not  let  them  long  remain  un- 
changed. In  January,  1780,  he  presented  to 
Congress  the  views  of  Spain :  that  the  United 

1  Durand,  p.  137. 

2  Luzerne  to  Vergennes,  May  14,   Aug.   27,   1778,  Stevens 

MSS. 


NEGOTIATOR  OF  PEACE.  159 

States  should  extend  no  further  to  the  westward 
than  settlements  were  allowed  by  the  Proclama- 
tion of  1763 ;  that  they  should  have  no  territory 
on  the  Mississippi,  and  therefore  no  right  to 
navigate  it ;  while  even  lands  east  of  the  river, 
in  which  settlements  were  prohibited,  are  held 
to  be  still  British  possessions.  In  February  and 
March  he  urged  the  same  and  similar  argu- 
ments.1 The  chief  position  now  pressed  was  the 
importance  of  conciliating  the  court  of  Madrid. 
But  the  Southern  States  resented  extremely  any 
sacrifice  of  their  claims ;  for  Virginia  was  reach- 
ing out  towards  the  Mississippi  and  the  foun- 
dations of  Kentucky  were  laying.  So  between 
these  two  fires  Congress  long  delayed  precise 
instructions.  June  6  and  7,  1781,  there  was  a 
long  debate  on  the  boundaries.  So  many  were 
in  favor  of  taking  the  Ohio  for  a  boundary, 
wrote  Luzerne  to  de  Vergennes,  that  it  would 
only  have  depended  on  him  to  get  such  a  motion 
passed,  but  "  it  seemed  to  me  that  circumstances 
might  arise  in  which  it  would  be  necessary  to 
withdraw  the  boundaries  still  further."2  The 
matter  of  boundaries  is  dependent  on  the  events 
of  the  war,  was  de  Vergennes'  comment,  and 
Congress  is  wise  in  not  defining  them.3  The 

1  Luzerne  to  Vergennes,  Feb.  11,  March  13. 

2  Luzerne  to  Vergennes,  June  13,  1781. 

3  Vergennes  to  Luzerne,  Sept.  7,  1781. 


160  JOHN  JAY. 

final  instructions  to  the  commissioners  referred 
them  to  these  former  instructions,  but  omitted 
to  tie  them  by  absolute  directions.  By  a  secret 
article,  however,  they  were  ordered  to  try  to  get 
the  boundaries  as  stated.  It  is  not  surprising, 
perhaps,  that  on  November  23d,  Luzerne  com- 
municated to  Congress  the  satisfaction  felt  by 
France  with  the  discretion  left  to  the  ministers. 
Luzerne  was  equally  successful  in  the  matter 
of  the  fisheries ;  after  long  debates,  and  in  spite 
of  the  ceaseless  efforts  of  Elbridge  Gerry  and 
the  delegates  from  Massachusetts,  —  at  times  the 
New  England  party  succeeding,  at  times  the 
French,  —  a  share  in  the  fisheries,  so  far  from 
being  an  ultimatum,  appeared  in  the  final  in- 
structions only  as  a  condition  precedent  to  a 
treaty  of  commerce  with  Great  Britain  in  case 
any  such  should  be  negotiated.  The  wishes  of 
Congress  are  subordinated  to  French  conven- 
ience, was  Luzerne's  cry  of  delight  to  de  Ver- 
gennes.1  It  is  true  that  Marbois  assured  Con- 
gress that  in  regard  to  the  fisheries  the  king 
would  do  his  best  to  procure  every  advantage 
for  the  United  States.2  But  M.  Marbois  was 
in  this  matter,  to  say  the  least,  curiously  misin- 
formed. The  question  is  simply  this,  said  Lu- 
zerne, discussing  the  fisheries  with  Mr.  Thomp- 

1  June  3,  1780. 

2  Marbois  to  Vergennes,  July  11,  1781. 


NEGOTIATOR  OF  PEACE.  161 

son,  a  member  of  Congress:  Has  Congress  a 
right  to  insist  on  France  procuring  for  them 
this  advantage  ?  One  has  only  to  read  the 
treaty  to  see  that  France  is  only  bound  to  secure 
independence  for  America.1  The  subject  may 
be  closed  with  this  curt  remark  of  de  Vergennes  : 
"  The  Americans  doubtless  do  not  flatter  them- 
selves that  in  the  last  analysis  we  will  let  the 
peace  depend  on  the  greater  or  less  extension 
that  may  be  granted  to  them  as  to  the  fish- 
eries." 2 

When  in  the  autumn  of  1779  the  election 
came  on  of  a  minister  to  negotiate  for  peace, 
the  New  England  party  chanced  to  be  strong 
enough  at  the  moment  to  elect  the  champion  of 
the  American  fishermen,  John  Adams.  Already 
suspected  and  disliked  by  France,  Adams  soon 
made  her  detest  him  by  his  independent  man- 
ners; and  Franklin  conveyed  to  Congress  the 
disapprobation  felt  for  his  fellow-countryman  by 
de  Vergennes,  an  act,  perhaps,  hardly  justified 
by  diplomatic  propriety.  In  the  spring  of  1781 
de  Vergennes  urged  on  Luzerne  the  policy  of 
having  Adams  instructed  to  take  no  step  without 
the  king's  consent,  —  as  the  next  best  thing  to 
having  him  removed  for  good.5  Luzerne,  ac- 

1  Luzerne  to  Vergennes,  Jan.  5,  1782. 

2  Vergennes  to  Luzerne,  March  23,  1782. 

8  Vergennes  to  Luzerne,  March  9,  1781,  April  19,  1781. 


162  JOHN  JAY. 

cordingly,  spoke  confidentially  to  the  president 
and  various  members  of  Congress  about  the 
danger  of  Adams  losing  for  America  an  oppor- 
tunity of  making  peace  on  reasonable  terms.  As 
a  result,  he  hoped  two  associates  would  be  sent 
him,  or  directions  to  govern  himself  by  de  Ver- 
gennes'  advice.1  He  labored  earnestly  with  the 
committee  on  instructions  as  to  the  folly  of  leav- 
ing the  negotiation  to  Adams's  sole  discretion. 
It  was,  he  said,  the  affection  of  France  for  the 
United  States  that  made  her  so  anxious  in  the 
matter.2  Now  the  committee  was  charged  to 
draw  up  a  resolution,  of  which  article  4  provided 
that  the  American  minister  should  be  guided  by 
the  advice  of  France.  The  article,  as  drafted, 
required  the  utmost  confidence  in  the  French 
ministers,  and  forbade  concluding  peace  without 
consulting  them.  That  was  not  enough,  ex- 
claimed Luzerne  to  the  chairman,  it  was  neces- 
sary that  Adams  should  have  to  follow  the  ad- 
vice of  France,  if  she  thought  it  essential.3 
Accordingly,  June  8th,  the  instructions  were 
amended  so  as  to  read  :  "  You  are  to  make  the 
most  candid  and  confidential  communications 
upon  all  subjects  to  the  ministers  of  our  generous 
ally,  the  King  of  France ;  to  undertake  nothing 

1  Luzerne  to  Vergennes,  June  1,  1781. 

2  Luzerne  to  Vergennes,  June  8,  1781.     Cf.  S.  J.,  ii.  438. 

3  Luzerne  to  Vergennes,  June  11,  1781. 


NEGOTIATOR  OF  PEACE.  163 

in  the  negotiations  for  peace  or  truce  without 
their  knowledge  or  concurrence ;  and  ultimately 
to  govern  yourself  by  their  advice  and  opinion." 
At  last  Luzerne  was  satisfied.  "I  regard  in 
effect,"  he  said,  "the  negotiation  as  being  act- 
ually in  the  hands  of  the  king,  with  the  excep- 
tion of  the  question  of  independence  and  the 
treaties."  1  The  resolution  had  passed  with  but 
three  States  against  it,  a  happy  result  which  he 
attributed  chiefly  to  the  absence  of  Samuel  Ad- 
ams, and  to  the  rupture  of  the  New  England 
League  for  which  he  was  indebted  to  his  old 
pensionary,  General  Sullivan.  The  success  of 
his  schemes  almost  turned  Luzerne's  head  with 
joy,  for  elsewhere  he  speaks  of  the  "  unlimited 
confidence  "  placed  in  France.2  Yet  it  is  to  be 
noticed  that  these  most  unwise  instructions  were 
passed  not  for  the  benefit  of  France,  but  purely 
for  the  sake  of  America,  because  it  was  believed 
that  in  such  way  the  best  terms  could  be  pro- 
cured at  the  peace.  Luzerne  had  previously 
disclaimed  that  France  had  any  selfish  object 
in  the  matter ;  now,  when  complaints  arose,  Lu- 
zerne urged  Congress  to  reconsider  their  deci- 
sion, and  hinted  that  "  France  would  be  glad  to 
be  relieved  of  the  responsibility  if  she  consulted 
her  own  interest."  3 

1  Luzerne  to  Vergennes,  June  11,  1781. 

2  Luzerne  to  Vergennes,  June  13,  1781. 

3  Luzerne  to  Vergennes,  June  23,  1781. 


164  JOHN  JAY. 

When  doubts  of  the  honesty  of  France  were 
expressed,  Luzerne  was  directed  to  discredit 
them  by  assurances  that  were  but  repetitions 
of  these  earlier  statements,  which  must  have 
had  no  small  share  in  effecting  the  purposes  of 
France.  You  may  assure  them,  said  de  Ver- 
gennes,  that,  "  far  from  wishing  to  abuse  the 
influence  he  might  have  on  the  negotiations  of 
the  American  ministers,  the  king  will  employ  it 
only  for  the  best  advantage  of  the  United  States ; 
and  that  if  he  does  not  succeed  in  procuring 
them  all  the  terms  that  each  of  them  individ- 
ually might  wish,  the  fault  will  certainly  not  be 
his,  but  due  to  circumstances." l  A  more  defi- 
nite pledge  of  faith  it  would  be  hard  to  draft, 
—  and  yet  Rayneval  seems  to  have  forgotten 
it  when  he  discussed  the  American  claims  with 
Shelburne  in  London. 

These  instructions  —  of  which  there  was  so 
much  unnecessary  talk  when  the  preliminary 
articles  of  peace  reached  America,  and  which 
assume  such  sanctity  even  in  the  imagination  of 
M.  Doniol  —  were  not  founded  on  any  treaty  obli- 
gation, but  were  enacted  under  a  mistake  of  fact 
for  the  purpose  of  gaining  from  England,  by  the 
good  offices  of  France,  terms  which,  as  appears 
by  the  official  correspondence  of  de  Vergennes 

1  Vergennes  to  Luzerne,  Sept.  7,  1781;.  Nov.  23,  1781,  S.  J., 
iii.  83. 


NEGOTIATOR   OF  PEACE.  165 

and  his  diplomatic  agents,  France  had  secretly 
determined  to  oppose.  The  attitude  of  France 
in  1782,  as  sketched  in  that  correspondence, 
was  not  that  presented  by  Luzerne  and  credited 
by  Congress ;  and  no  treaty  satisfactory  to  the 
United  States  could  possibly  have  been  negoti- 
ated except  by  one  who  saw  the  facts  as  they 
were,  and  was  bold  enough  to  act  accordingly. 
Adams  may  have  been  such  a  man,  but  his  tem- 
perament was  that  of  a  fighter  rather  than  of  a 
diplomatist,  and,  suspected  as  he  was  by  France 
of  unfriendly  prejudice  from  the  beginning,  he 
could  have  had  but  slight  opportunity  of  suc- 
cess. Now  to  tie  his  hands  still  more,  follow- 
ing up  Luzerne's  suggestion  to  give  Adams 
"  two  adjoints,"  Jay,1  Franklin,  Jefferson,  and 
Laurens  were  added  to  the  commission.  As  for 
the  peace  negotiations,  wrote  Luzerne,  they  will 
depend  henceforth  on  his  colleagues  as  much  as 
on  him.  "  Mr.  Jay  is  the  one  whose  reports  in 
the  course  of  the  negotiation  will  make  most  im- 
pression on  Congress,  because  he  passes  as  be- 
ing the  least  violent  either  for  or  against  us,  and 
I  am  very  sure  that  his  accounts  will  have  much 
influence  on  the  opinion  Congress  will  form  of 
our  conduct  at  the  peace."  2 

1  Jay  being  named  first. 

2  Luzerne  to  Vergennes,  Sept.  25,  1781. 


CHAPTER  VIII. 

THE  NEGOTIATIONS. 

1782,  1783. 

WHEN  Jay  reached  Paris  on  June  23,  1782, 
the  negotiations,  strictly  speaking,  had  not  yet 
begun.  All  the  belligerent  powers,  except 
Spain,  were  eager  for  peace;  the  ministry  of 
Lord  North  had  been  driven  from  power  in 
March  by  a  series  of  votes  of  "  want  of  confi- 
dence," and  the  Rockingham  ministry  had  taken 
office  only  on  condition  that  the  king  would  not 
veto  the  concession  of  independence  to  Amer- 
ica ;  while  France  was  convinced  of  the  neces- 
sity of  entering  into  direct  negotiations  at  Paris 
in  order  to  forestall  the  intervention  of  the  im- 
perial courts  of  Austria  and  Russia,  whose  of- 
fers of  mediation  were  half  accepted  by  Eng- 
land in  whose  favor  they  seemed  unfairly  pre- 
judiced.1 Franklin  had  opened  unofficial  inter- 

1  "  Observations  relative  to  Pacification  (French),  June  20, 
1782,"  Stevens  MS8.  ;  Vergennes  to  Montmorin,  June  22,  1782, 
Stevens  MSS. ;  Montmorin  to  Vergennes,  Aug.  22,  1782,  Ste- 
vens MSS. 


THE  NEGOTIATIONS.  167 

course  with  the  ministry,  through  Oswald,  "  a 
pacifical  man," l  and  Grenville,  "  a  sensible,  ju- 
dicious, intelligent,  good  -  tempered,  and  well 
instructed  young  man,"  2  the  former  being  the 
personal  envoy  of  Shelburne,  Secretary  of 
State  for  Home  and  the  Colonies,  and  the  latter 
the  personal  envoy  of  Fox,  Secretary  of  State 
for  Foreign  Affairs.  Each  of  these  ministers 
was  endeavoring  to  secure  the  American  ne- 
gotiations for  his  own  department.  Grenville 
had  received  successively  several  commissions, 
but  only  to  treat  with  France  and  not  technic- 
ally including  America ;  while  as  yet  Oswald 
had  no  commission  at  all.  In  these  prelimi- 
nary overtures,  however,  some  suggestions  had 
been  made  by  Franklin  which  proved  useful: 
that  the  only  engagements  America  had  with 
France  were  comprised  in  the  Treaty  of  Com- 
merce and  the  Treaty  of  Alliance,  and  that  so 
soon  as  England  conceded  the  independence 
of  America,  "  the  treaty  she  had  made  with 
France  for  gaining  it  ended."  3  De  Vergennes 
had  proposed  that  the  negotiations  of  France 
and  America  should  be  separate,  though  they 
were  to  move  pari  passu  and  the  two  treaties 
were  to  be  signed  simultaneously ; 4  and  this 

1  Franklin's  Works,  ix.  267. 

2  Ibid.,  viii.  35. 

3  Grenville  to  Fox,  May  14,  1782,  Stevens  MSS. 

4  Bancroft,  x.  540 ;  Franklin's  Works,  ix.  299. 


168  JOHN  JAY. 

idea  Franklin  communicated  to  Grenville,  who 
acceded  to  it  gladly.1  The  proposition  that 
France  should  accept  the  grant  of  indepen- 
dence as  her  full  compensation  de  Vergennes 
rather  scornfully  rejected.2  For  "  even  admit- 
ting America  to  be  the  sole  object  of  France  in 
the  war,  there  still  remained  Spain  to  satisfy, 
and  that  power  had  never  had  anything  in  com- 
mon with  America,  whose  independence  she  had 
not  yet  recognized ;  "  3  a  frank  admission  that 
France  might  prolong  the  war  for  objects  in 
which,  in  the  words  of  Fox,  "  it  is  not  even 
pretended  that  America  has  any  interest  either 
near  or  remote."  4  It  seems  then  to  have  been 
agreed  that  America  should  negotiate  with  Eng- 
land directly,  not  through  de  Vergennes  or  the 
mediating  courts,  and  separately,  by  herself, 
without  further  communication  with  France  than 
was  required  by  comity,  "  biense'ance,"  to  use 
Franklin's  term,  and  by  the  interpretation  the 
American  ministers  should,  in  their  discretion, 
put  upon  their  instructions.  These  instructions, 
so  far  as  they  imposed  confidence  in  France, 
were  not  at  that  time  construed  by  Franklin 
literally,  for  he  did  not  communicate  to  de 

1  Grenville  to  Fox,  May  30,  1782,  Stevens  MSS. 

2  Grenville  to  Fox,  May  10,  1782,  Stevens  MSS. 
8  Grenville  to  Fox,  May  30,  1782,  Stevens  MSS. 
*  Fox  to  Grenville,  May  26,  1782,  Stevens  MSS. 


THE  NEGOTIATIONS.  169 

Vergennes  the  one  important  suggestion  which 
he  made  with  regard  to  the  terms  of  peace ; 
namely,  the  cession  of  Canada,  a  suggestion 
that  he  would  hardly  have  included  even  in  his 
informal  "  notes  for  conversation  "  had  he  been 
aware  that  it  was  opposed  equally  by  England, 
France,  and  his  own  government.  So  early  as 
1778  it  was  the  settled  design  of  France  and 
Spain  "  to  keep  the  English  in  the  possession 
of  Nova  Scotia  and  of  Canada,"  1  and  Gerard 
was  instructed  to  dissuade  Congress  from  their 
plan  of  conquering  Canada,  as  the  king  thought 
the  possession  of  it  by  England  would  be  a  use- 
ful means  of  keeping  America  dependent  upon 
France.2  The  English  ministry  declared  the 
cession  of  Canada  to  be  "  out  of  the  question,"  3 
and  Washington  considered  its  possession  to  be 
undesirable.  Such  was  the  state  of  affairs  when 
Jay  arrived  on  the  scene. 

The  first  letter  he  wrote  to  America  testified 
to  his  regard  for  Franklin :  "I  have  endeavored 
to  get  lodgings  as  near  to  Dr.  Franklin  as  I  can. 
He  is  in  perfect  good  health,  and  his  mind 
appears  more  vigorous  than  that  of  any  man  of 
his  age  I  have  known.  He  certainly  is  a  valu- 

1  Vergennes  to  Gdrard,  Dec.,  1778,  De  Circourt,  iii.  264. 

2  Vergennes  to  Ge"rard,  Dec.  1778,  De  Circourt,  iii.  255. 

3  Fitzmaurice,  Life  of  Shelburne,  iii.  183-186. 


170  JOHN  JAY. 

able  minister  and  an  agreeable  companion." l 
The  next  day,  writing  to  Montmorin,  he  showed 
how  far  he  was  from  any  prejudice  against  the 
French :  "  What  I  have  seen  of  France  pleases 
me  exceedingly.  Doctor  Franklin  has  received 
some  late  noble  proofs  of  the  king's  liberality  in 
the  liquidation  of  his  accounts,  and  the  terms 
and  manner  of  paying  the  balance  due  on  them. 
No  people  understand  doing  civil  things  so  well 
as  the  French.  The  aids  they  have  afforded  us 
received  additional  value  from  the  generous  and 
gracious  manner  in  which  they  were  supplied, 
and  that  circumstance  will  have  a  proportiona- 
ble degree  of  influence  in  cementing  the  connec- 
tion formed  between  the  two  countries."  2 

Jay  lost  not  a  moment  before  setting  about 
the  business  of  his  mission.  The  entries  in  his 
diary  run  :  "  1782,  23d  June.  Arrived  in  Paris 
about  noon.  Spent  the  afternoon  at  Passy  with 
Dr.  Franklin.  He  informed  me  of  the  state  of 
the  negotiation,  and  that  he  kept  an  exact  jour- 
nal of  it.  24th.  Waited  upon  M.  Yergennes 
with  the  Dr.3  The  count  read  us  his  answer 
to  the  British  minister.  25th.  Wrote  to  Count 
Aranda.  Wrote  to  the  secretary  for  foreign  af- 
fairs. 26th.  After  breakfast  with  the  Dr.  met 

1  Jay  to  Livingston,  June  25, 1782,  Dipl.  Corr.,  viii.  114,  115. 

2  Jay  to  Montmorin,  June  26,  1782,  Jay's  Jay,  ii.  100. 
8  Dr.  Franklin. 


THE  NEGOTIATIONS.  171 

with  Mr.  Grenville."  l  The  paper  that  de  Ver- 
gennes  read  to  Jay  and  Franklin  was  presum- 
ably a  copy  of  the  verbal  answer  he  had  made 
to  Grenville  on  the  21st,  which,  to  quote  his 
own  words  to  Montmorin,  "  was  drawn  up  solely 
with  the  view  of  prolonging  the  negotiation 
to  gratify  our  desires  and  the  convenience  of 
our  allies.  In  fact  the  four  points  on  which  I 
ask  for  arrangements  would  take  up  quite  six 
months."  2  June  29th  Jay  and  Franklin  called 
upon  Aranda,  the  Spanish  ambassador,  who  had 
been  authorized  to  continue  the  negotiations  at- 
tempted at  Madrid.  A  suggestion  of  the  ne- 
cessity of  neutral  concessions  was  made  by  the 
ambassador,  but  nothing  of  importance  was  trans- 
acted immediately,  as  the  next  day  Jay  fell  ill, 
and  was  unable  to  take  any  part  in  affairs  for 
several  weeks. 

During  Jay's  illness  another  change  of  min- 
isters occurred  in  England.  Rockingham  died 
on  July  1st,  and  the  next  day  the  king  offered 
the  vacant  office  to  Shelburne  "  with  the  fullest 
political  confidence."  The  Whig  party  at  once 
objected  to  what  was  unquestionably  -a  consti- 
tutional exercise  of  the  prerogative,  and  Shel- 
burne's  acceptance  was  followed  by  the  resigna- 
tion of  Fox,  Burke,  Sheridan,  and  others  of 

1  Jay's  Jay,  i.  136. 

2  Vergennes  to  Montmorin,  July  20,  Stevens  MSS. 


172  JOHN  JAY. 

Fox's  intimate  friends.  Pitt  became  Chancellor 
of  the  Exchequer,  Townshend,  Home  and  Colo- 
nial Secretary,  and  Lord  Grantham,  Secretary 
for  Foreign  Affairs.  This  was,  indeed,  a  minis- 
try, to  use  the  king's  phrase,  "  on  a  broad  bot- 
tom," but  decidedly  liberal.  In  the  House  of 
Lords  Shelburne  stated  that  his  views  on  the 
subject  of  American  independence  were  still  the 
same  as  heretofore,  that  it  would  be  a  fatal  mis- 
fortune to  England,  but  that  now  he  was  obliged 
to  yield  to  necessity.  He  would,  however,  make 
every  exertion  to  prevent  the  court  of  France 
from  dictating  the  terms  of  peace ;  the  sun  of 
England  would  set  with  the  loss  of  America,  but 
he  was  resolved  to  improve  the  twilight  and  pre- 
pare for  the  rising  of  that  luminary  again.1  On 
the  llth  Parliament  rose,  and  Shelburne  was 
prepared  to  give  his  whole  attention  to  conclud- 
ing the  negotiations  before  it  should  reassem- 
ble in  November.  He  at  once  sent  Benjamin 
Vaughan,  the  political  economist,  to  Paris  to 
assure  Franklin,  who  was  an  intimate  friend, 
that  there  was  to  be  no  change  of  policy ;  and 
to  Oswald  he  wrote :  "  I  beg  him  to  believe  that 
I  can  have  no  idea  or  design  in  acting  towards 
him  and  his  associates  but  in  the  most  liberal 
and  honorable  manner."  2 

1  Fitzmaurice,  Life  of  Shelburne,  iii.  239,  241. 

2  Shelburne  to  Oswald,  June  30,  Fitzmaurice,  Life  of  Shel- 
burne, iii.  243. 


THE  NEGOTIATIONS.  173 

On  July  9th,  in  an  interview  with  Oswald, 
Franklin  drew  up  a  series  of  articles  to  be  com- 
municated to  Shelburne,  as  a  basis  for  negotia- 
tion. The  articles  marked  necessary  were  :  (1) 
Independence,  full  and  complete,  in  every  sense, 
and  the  withdrawal  of  all  troops  ;  (2)  A  settle- 
ment of  boundaries ;  (3)  A  confinement  of  the 
boundaries  of  Canada  to  at  least  what  they  were 
before  the  Quebec  Act ;  (4)  A  freedom  of  fish- 
ing on  the  banks  of  Newfoundland  and  else- 
where for  fish  and  whales.  The  articles  marked 
advisable  were :  (1)  An  indemnity  to  many 
people  who  had  been  ruined  by  the  destruction 
of  towns ;  such  an  indemnity,  Franklin  said, 
"  might  not  exceed  five  or  six  thousand  pounds ; " 
(2)  Some  acknowledgment  of  the  error  of  Eng- 
land in  distressing  the  country ;  (3)  American 
ships  and  trade  to  have  the  same  privileges  in 
the  United  Kingdom  as  British  ships  and  trade ; 
(4)  The  cession  of  Canada  and  Nova  Scotia.1 
At  the  close  of  this  interview  Franklin  withdrew 
his  suggestion,  made  in  his  "  notes  for  conversa- 
tion "  in  April,  that  the  royalists  might  be  com- 
pensated by  the  sale  of  waste  lands  in  Canada ; 
and  declared  that,  owing  to  the  inability  of  Con- 
gress to  control  the  particular  States,  the  claims 
of  the  royalists  could  not  be  considered.  Oswald 
concluded  his  report  with  the  remark,  "  I  could 
1  Fitzmaurice,  Life  of  Shelburne,  iii.  243,  244. 


174  JOHN  JAY. 

not  perceive  that  he  meant  that  the  progress  and 
conclusion  of  their  treaty  was  to  have  any  con- 
nection or  would  be  influenced  by  what  was  do- 
ing in  the  treaties  with  other  powers."  l 

When  Fox  resigned,  Grenville  thought  fit  to 
resign  also,  and  was  succeeded  by  Fitzherbert, 
the  English  minister  at  Brussels.  But  before 
leaving  Paris,  Fitzherbert  alarmed  Franklin  by 
spreading  a  report  that  Shelburne  had  no  inten- 
tion of  granting  independence.  The  report  was 
instantly  denied  by  Shelburne  :  "  There  never 
have  been  two  opinions,"  he  assured  Oswald, 
"  since  you  were  sent  to  Paris,  upon  the  most 
unequivocal  Acknowledgment  of  American  In- 
dependency ; "  and  he  promised  him  a  commis- 
sion, with  instructions  from  Townshend  "  to 
make  the  Independency  of  the  Colonies  the 
Basis  and  Preliminary  of  the  Treaty." 2  This 
language  seems  at  first  sight  unequivocal ;  but 
it  has  misled  some  historians  into  supposing  that 
what  was  intended  was  an  acknowledgment  of 
independence,  without  reference  to  a  treaty,  — 
an  acknowledgment  as  absolute  as  was  subse- 
quently extorted  by  Jay  through  the  representa- 
tions of  Vaughan.  The  language  of  Shelburne, 
however,  on  this  occasion  differs  little  from  the 

1  Oswald  to  Shelburne,  July  11. 

2  Shelburne  to  Oswald,   July  27,  1782,  Hale,   Franklin  in 
France,  ii.  90. 


THE  NEGOTIATIONS.  175 

vote  of  the  Cabinet,  May  23d,  on  the  motion  of 
Fox,  "  to  propose  the  independency  of  America 
in  the  first  instance,  instead  of  making  it  a  con- 
dition of  a  general  treaty ; " l  a  motion  which 
Shelburne  and  a  majority  of  the  Cabinet  con- 
strued to  mean  that  independence  was  proposed 
merely  as  "  the  price  of  peace,"  as  a  basis  to 
treat  upon.2  As  to  the  articles  drawn  up  by 
Franklin,  Shelburne  hoped  that  those  "called 
advisable  will  be  dropped,  and  those  called  ne- 
cessary alone  retained  as  the  ground  of  discus- 
sion." 3 

On  August  6th  a  copy  of  the  promised  com- 
mission arrived,  empowering  Oswald  to  treat  and 
conclude  with  the  commissioners  of  "the  said 
colonies  or  plantations,"  etc.  The  next  day  Os- 
wald called  upon  Franklin  at  Passy,  who  read 
the  commission  and  said  "  he  was  glad  it  was 
come,"  and  "  that  he  hoped  we  shou'd  do  well 
enough  'and  not  be  long  about  it."  Thus  Os- 
wald remarks  in  his  journal,  having  in  mind 
Franklin's  earlier  suggestion  that  on  the  grant- 
ing of  independence  the  treaty  with  France  came 
to  an  end.  "  That  could  not  but  be  very  agree- 
able to  me,"  he  continued,  "if  my  expectations 

1  June  30,  Hale,  Franklin  in  France,  ii.  61  n. 

2  Fitzmaurice,  Life  of  Shelburne,  iii.  219. 

3  Shelburne  to  Oswald,  June  27,  1782,  Hale,  Franklin  in 
France,  ii.  90. 


176  JOHN  JAY. 

had  not  b£en  so  soon  after  dampt  by  the  .  .  . 
unpleasant  reception  from  Mr.  Jay."  This  con- 
versation with  Jay,  which  occurred  the  follow- 
ing day,  is,  perhaps,  of  sufficient  interest  to 
justify  free  quotation  from  Oswald's  journal. 
Jay,  he  wrote,  "  is  a  man  of  good  sense,  of  frank, 
easy,  and  polite  manners.  He  read  over  the 
copy  of  the  Commission  .  .  .  and  then  said : 
By  the  quotation  from  the  Act  of  Parliament  in 
the  commission  he  supposed  it  was  meant  that 
Independence  was  to  be  treated  upon,  and  was 
to  be  granted,  perhaps,  as  the  price  of  peace ; 
that  it  ought  to  be  no  part  of  a  Treaty ;  it  ought 
to  have  been  expressly  granted  by  Act  of  Parlia- 
ment, and  an  order  for  all  troops  to  be  withdrawn, 
previous  to  any  proposal  for  Treaty ;  as  that  was 
not  done,  the  king,  he  said,  ought  to  do  it  by 
Proclamation,  and  order  all  garrisons  to  be  evac- 
uated, and  then  close  the  American  war  by  a 
treaty."  Then,  after  mentioning  "  many  things 
of  a  retrospective  kind,"  Jay  added  that  "the 
great  point  was  to  make  such  a  peace  as  should 
be  lasting."  Oswald  noticed  the  expression 
which  he  had  often  heard  from  de  Vergennes 
and  Franklin,  and  was  curious  to  know  what 
meaning  Jay  attached  to  the  words.  "  What 
security,"  he  asked,  "  could  be  given  for  a  con- 
tinuance of  peace,  save  a  treaty,  which,  like  the 
Treaty  of  Paris,  was  apt  to  prove  very  inade- 


THE  NEGOTIATIONS.  177 

quate  security  ?  "  Jay  replied,  "  He  would  not 
give  a  farthing  for  any  parchment  security  what- 
ever. They  had  never  signified  anything  since 
the  world  began,  when  any  prince  or  state,  of 
either  side,  found  it  convenient  to  break  through, 
them.  But  the  peace  he  meant  was  such,  or  so 
to  be  settled,  that  it  should  not  be  the  interest 
of  either  party  to  violate  it."  As  to  France,  he 
said  that  by  their  treaty  the  Americans  could 
not  make  peace  but  in  concurrence  with  the 
English  settlement  with  France ;  that  the  inde- 
pendence of  America  was  not  a  sufficient  indem- 
nity to  France,  and,  if  granted  as  such,  would 
put  them  under  a  greater  obligation  to  France 
than  they  inclined  to,  as  if  to  her  alone  they 
were  indebted  for  their  independence.  The 
treaty  of  alliance  with  France  must  be  fulfilled ; 
for  "  they  were  a  young  Republic  just  come  into 
the  world,  and  if  they  were  to  forfeit  their  char- 
acter at  the  first  outset,  they  would  never  be 
trusted  again,  and  should  become  a  proverb 
among  mankind."  Jay  spoke  "  with  such  a  free- 
dom of  expression  and  disapprobation  of  our  con- 
duct at  home  and  abroad  respecting  America," 
concluded  Oswald,  "  as  shews  we  have  little  to 
expect  from  him  in  the  way  of  indulgence.  And 
I  may  venture  to  say  that,  although  he  has  lived 
till  now  as  an  English  subject,  though  he  never 
has  been  in  England,  he  may  be  supposed  (by 


178  JOHN  JAY. 

anything  I  cou'd  perceive)  as  much  alienated 
from  any  particular  regard  for  England  as  if  he 
had  never  heard  of  it  in  his  life.  ...  I  sincerely 
wish  I  may  be  mistaken,  but  think  it  proper  to 
remark,  as  Mr.  Jay  is  Dr.  Franklin's  only  col- 
league, and  being  a  much  younger  man  and  bred 
to  the  law,  will  of  course  have  a  great  share  of 
the  business  assigned  to  his  care." 

On  the  10th  Jay  and  Franklin  consulted,  by 
appointment,  with  de  Vergennes,  to  whom  Frank- 
lin had  sent  a  copy  of  the  commission.  De  Ver- 
gennes  advised  them  to  proceed  under  it,  as  soon 
as  the  original  should  arrive.  Jay  observed  that 
"  it  would  be  descending  from  the  ground  of  in- 
dependence to  treat  under  the  description  of 
colonies,"  —  by  which  phrase  the  States  were 
described  in  the  commission.  De  Vergennes  re- 
plied that  an  acknowledgment  of  independence, 
instead  of  preceding,  must  in  the  natural  course 
of  things  be  the  effect  of  the  treaty,  and  that  it 
would  not  be  reasonable  to  expect  the  effect  be- 
fore the  cause.  On  the  whole,  the  French  court 
considered  that  the  American  ministers  should 
accept  the  commission  on  condition  that  Eng- 
land should  accept  their  own  commissions  as 
made  out  by  Congress.1  To  Montmorin  and 
Luzerne,  de  Vergennes  subsequently  expressed 

1  "Reflections  (French)  on  the  biU  of  July  25,  1782," 
Stevens  MSS. 


THE  NEGOTIATIONS.  179 

similar  opinions.1  Jay's  theory  of  de  Vergennes' 
motives  he  explained  fully  to  Franklin :  He 
thought  that  the  French  minister  wished  to  post- 
pone the  acknowledgment  until  the  objects  of 
Spain  had  been  secured,  "  because,  if  we  once 
found  ourselves  standing  on  our  own  legs,  our 
independence  acknowledged,  and  all  our  other 
terms  ready  to  be  granted,  we  might  not  think 
it  our  duty  to  continue  in  the  war  for  the  at- 
tainment of  Spanish  objects.  I  could  not  other- 
wise account  for  the  minister's  advising  us  to 
act  in  a  manner  inconsistent  with  our  dignity, 
and  for  reasons  which  he  himself  had  too  much 
understanding  not  to  see  the  fallacy  of.  The 
Doctor  imputed  this  conduct  to  the  moderation 
of  the  minister,  and  to  his  desire  of  removing 
every  obstacle  to  speedy  negotiations  for  peace. 
He  observed  that  this  court  had  hitherto  treated 
us  very  fairly,  and  that  suspicions  to  their  disad- 
vantage should  not  be  readily  entertained.  He 
also  mentioned  our  instructions  as  further  rea- 
sons for  our  acquiescence  in  the  advice  and  opin- 
ions of  the  minister." 2  Jay,  indeed,  had  di- 
vined, with  an  accuracy  hard  to  surpass,  the 
fears  of  the  court  of  Spain,  which  by  the  treaty 
of  Aranjuez  Vergennes  was  compelled  to  regard. 

1  To  Montmorin,  Aug.  22 ;  to  Luzerne,  Sept.  27,  Stevens 
MSS. 

2  To  R.  R.  Livingston,  Sept.  18,  1782,  Dipl  Com,  viiL  135. 


180  JOHN  JAY. 

"  When  once  independence  has  been  definitely 
offered  to  the  United  States,"  Montraorin  wrote 
from  Madrid,  August  12th,  expressing  his  own 
opinion  and  that  of  Florida  Blanca,  "if  it  is  not 
followed  immediately  by  peace  it  will  not  be 
difficult  to  persuade  them  'that  the  continuation 
of  the  war  has  an  entirely  different  object  from 
their  interests."  1  That  de  Vergennes  had  an 
ulterior  motive  was,  indeed,  obvious  enough, 
from  the  inconsistency  of  his  present  argument 
that  independence  should  be  the  effect  of  the 
treaty,  with  his  previous  assertion  to  Grenville, 
in  Franklin's  presence,  that  it  was  no  favor  to 
France,  since  independence  existed  in  fact  be- 
fore France  interfered,  and  with  his  still  earlier 
refusal,  inspired  possibly  by  Adams,  to  accede 
to  the  Russo-Austrian  plan  of  mediation,  be- 
cause it  contemplated  an  English  negotiation 
with  the  States  as  colonies,  and  not  as  an  in- 
dependent power  of  equal  rank  with  the  others. 
Franklin,  however,  was  unconvinced  by  Jay's 
reasoning ;  for  on  the  morning  of  August  llth, 
Sunday,  he  told  Oswald  that  "  Mr.  Jay  was  a 
lawyer,  and  might  possibly  think  of  things  that 
did  not  occur  to  those  who  were  not  lawyers. 
And  he  at  last  spoke  as  though  he  did  not  see 
much  difference ;  but  still  used  such  a  mode  of 
expression"  that  Oswald  could  not  positively 
1  Montmorin  to  Vergennes,  Aug.  12,  1782,  Stevens  MSS. 


THE  NEGOTIATIONS.  181 

say  that  he  would  not  insist  "  on  Mr.  Jay's  prop- 
osition, or  some  previous  or  separate  acknowl- 
edgment." 1 

There  was,  however,  no  room  to  mistake  Jay's 
meaning.  "  I  urged  upon  Oswald,"  he  wrote, 
"  in  the  strongest  terms  the  great  impropriety, 
and  consequently  the  utter  impossibility,  of  our 
ever  treating  with  Great  Britain  on  any  other 
than  an  equal  footing,  and  told  him  plainly  that 
I  would  have  no  concern  in  any  negotiation  in 
which  we  were  not  considered  as  an  independent 
people ;  "  and  with  Oswald's  approval  he  drew 
up  a  declaration,  recognizing  the  colonies  as  in- 
dependent States,  which,  after  being  submitted 
to  Franklin,  was  delivered  to  Oswald  on  the 
15th.  They  consented,  however,  to  waive  the 
declaration,  when  the  Englishman  showed  that 
he  was  instructed  to  grant  independence  if  the 
commissioners  refused  to  treat  otherwise,  and 
they  agreed  to  accept  a  stipulation  of  indepen- 
dence in  a  separate  preliminary  article.  On  Au- 
gust 17th  Oswald  communicated  these  demands 
to  the  ministry,  though  his  commission  under 
the  great  seal  had  arrived  the  day  before,  and 
Franklin  and  Jay  were  discussing  it  with  de 
Vergennes  who  repeated  his  previous  argu- 
ments. "  Upon  the  whole,"  wrote  Oswald, 
"they  would  not  treat  at  all  until  their  inde- 
1  Hale,  Franklin  in  France,  ii.  112. 


182  JOHN  JAY. 

pendence  was  so  acknowledged  as  that  they 
should  have  an  equal  footing  with  us  and  might 
take  rank  as  parties  to  an  agreement"  l  "  The 
American  commissioners,"  he  wrote  again,  "  will 
not  move  a  step  until  independence  is  acknowl- 
edged ;  until  the  Americans  are  contented,  Mr. 
Fitzherbert  cannot  proceed."  2 

Jay  also  prepared  a  letter  explaining  the  at- 
titude of  the  commissioners.  "If  Parliament 
meant  to  enable  the  king  to  conclude  a  peace 
with  us  on  terms  of  independence,  they  neces- 
sarily meant  to  enable  him  to  do  it  in  a  manner 
compatible  with  his  dignity,  and  consequently 
that  he  should  previously  regard  us  in  a  point 
of  view  that  would  render  it  proper  for  him  to 
negotiate  with  us.  As  to  referring  an  acknowl- 
edgment of  our  independence  to  the  first  article 
of  a  treaty,  permit  us  to  remark  that  this  im- 
plies that  we  are  not  to  be  considered  in  that 
light  until  after  the  conclusion  of  the  treaty, 
and  our  acquiescing  would  be  to  admit  the  pro- 
priety of  our  being  considered  in  another  light 
during  that  interval.  It  is  to  be  wished  that 
his  Majesty  will  not  permit  an  obstacle  so  very 
unimportant  to  Great  Britain,  but  so  essential 
and  indispensable  with  respect  to  us,  to  delay 

1  To  Shelburne,  Aug.  17,  1782,  Stevens  MSS. 

2  To   Shelburne,   Aug.   18,    1782;  Oswald  to   Townshend, 
Aug.  18,  Stevens  MSS. 


THE  NEGOTIATIONS.  183 

the  reestablishment  of  peace."  This  letter  was 
considered  too  positive  by  Franklin,  who,  more- 
over, as  Jay  wrote  to  Livingston,  "  seemed  to  be 
much  perplexed  and  fettered  by  our  instruc- 
tions to  be  guided  by  the  advice  of  this  court. 
Neither  of  these  considerations  had  weight  with 
me ;  for  as  to  the  first,  I  could  not  conceive  of 
any  event  which  would  render  it  proper,  and 
therefore  possible,  for  America  to  treat  in  any 
other  character  than  as  an  independent  nation  ; 
and  as  to  the  second,  I  could  not  believe  that 
Congress  intended  we  should  follow  any  advice 
which  might  be  repugnant  to  their  dignity  and 
interest."  Fitzherbert,  writing  on  August  17th, 
informed  Grantham  of  de  Vergennes'  attempt 
to  excite  new  jealousies  and  misunderstand- 
ings between  England  and  America,  which  con- 
vinced him  that  the  grant  of  American  inde- 
pendence at  the  moment  would  not  be  agreeable 
to  France,  "  as  the  band  between  them  would 
thereby  be  loosened  before  the  conclusion  of  a 
peace."  But  so  averse  was  the  ministry  to  ac- 
ceding to  the  terms  of  Jay,  that  they  offered  to 
waive  the  claims  of  British  creditors  for  debts 
prior  to  1775,  and  of  the  refugees  for  compensa- 
tion, "  for  the  salutary  purposes  of  precluding 
all  further  delay,"  as  Townshend  expressed  it. 

At  last,  however,  Oswald  was  instructed,  that, 
if  this  concession  would  not  suffice,  "  in  the  very 


184  JOHN  JAY. 

last  resort "  he  might  inform  the  commissioners 
that  the  king  would  recommend  Parliament  to 
enable  him  to  acknowledge  independence  "abso- 
lutely and  irrevocably,  and  not  depending  upon 
the  event  of  any  other  part  of  a  treaty.  But 
upon  the  whole,  it  is  his  Majesty's  express  com- 
mand that  you  do  exert  your  greatest  address  to 
the  purpose  of  prevailing  upon  the  American 
commissioners  to  proceed  in  the  treaty,  and  to 
admit  the  article  of  independence  as  a  part,  or 
as  one  only  of  the  other  articles."  1  In  other 
words,  the  Cabinet  had  determined  to  reject  Os- 
wald's proposal.2  On  September  5th  Oswald 
sent  Franklin  an  extract  from  this  letter  of 
Grantham's,  and  a  day  or  two  later  made  an- 
other vain  attempt  to  persuade  Jay  to  rest  sat- 
isfied with  his  commission  in  its  present  form. 
On  the  8th  Franklin  fell'  ill  with  a  serious  at- 
tack of  the  gout.3 

In  the  meanwhile  important  events  had  oc- 
curred which  convinced  Jay  that  the  French 
court  was  opposed  to  American  claims  in  other 
matters  than  that  of  independence.  When,  in 
July,  Jay  renewed  his  negotiations  with  Aranda, 
the  latter  stated  the  Spanish  claims  with  great 

1  Townshend  to  Oswald,  Sept.  1,  1782,  Fitzmaurice,  Life  of 
Shelburne,  iii.  255,  256. 

2  Fitzmaurice,  Life  of  Shelburne,  iii.  p.  254. 

3  Franklin's  Works,  ix.  403-405. 


THE  NEGOTIATIONS.  185 

definiteness,  and  subsequently  sent  him  a  map  of 
the  boundaries  proposed.1  Aranda  argued  that 
the  western  territory,  so  far  as  it  was  not  still  in 
the  possession  of  the  Indians,  belonged  to  Spain 
by  virtue  of  her  conquest  of  West  Florida  and 
her  posts  on  the  Mississippi  and  the  Illinois. 
Jay  proposed  for  discussion  a  boundary  east  of 
the  Mississippi,  running  from  a  lake  near  the 
confines  of  Georgia  to  the  confluence  of  the  Ka- 
nawha  with  the  Ohio  and  thence  to  Lake  Erie  ; 
and  on  August  10th  he  left  with  de  Vergennes 
a  map  marked  according  to  these  views.  De 
Vergennes  withheld  his  opinion,  but  Eayneval, 
the  minister's  confidential  secretary,  said  that  he 
thought  the  Americans  claimed  too  much,  and 
Franklin  seemed  to  agree  with  Rayneval.2  On 
August  26th  Jay  and  Aranda  held  another  con- 
ference on  the  boundaries,  and  Aranda  asked 
Jay  to  state  his  views  in  writing.3  On  Septem- 
ber 5th,  upon  an  invitation  from  Kayneval,  Jay 
talked  over  the  matter  with  him  at  Versailles ; 
and  on  the  6th  Eayneval  sent  Jay  a  paper  stat- 
ing his  personal  ideas.4 

The  argument  of  Rayneval  was  simple  in  its 
logic  but  startling  in  its  conclusions.  America's 
only  claim  to  the  western  territory  was  under 
the  rights  of  Great  Britain,  but  in  1775  Eng- 

1  Dipl.  Corr.,  viii.  150.  2  Ibid.,  viii.  152. 

8  Ibid.,  viii.  154.  4  lbid^  viii>  155> 


186  JOHN  JAY. 

land  had  admitted  that  Ohio  belonged  to  France, 
and  in  1761, 1763,  and  1775  that  the  lands  west 
of  the  Alleghanies  were  Indian  territory.  He 
therefore  proposed  that  lands  to  the  north  of 
the  Ohio  should  belong  to  England,  lands  to  the 
south  of  latitude  31°  north  to  Spain ;  also  that 
a  line  should  be  drawn  along  the  Cherokee  and 
the  Cumberland  to  the  Ohio,  and  that  the  In- 
dians to  the  west  of  this  line  should  be  under 
the  protection  of  Spain,  and  those  to  the  east 
under  the  protection  of  the  United  States.1  "  It 
was  not  to  be  believed,"  Jay  wrote,  "  that  the 
first  and  confidential  secretary  of  the  Count  de 
Vergennes  would,  without  his  knowledge  and 
consent,  declare  such  sentiments  and  offer  such 
propositions,  and  that,  too,  in  writing ; "  and 
John  Adams,2  and,  in  a  similar  case,  Fitzher- 
bert,  reached  the  same  conclusion.3  De  Ver- 
gennes disowned  all  responsibility  for  the  paper 
in  1783 : 4  "it  might  be  considered  as  non-exist- 
ent in  relation  to  the  king's  ministers."  But 
a  year  earlier,  when  the  matter  was  still  fresh, 
his  tone  to  Luzerne  was  different :  "A  confiden- 
tial note  has  been  sent  to  Mr.  Jay,  in  which  it 
is  almost  proved  that  the  boundaries  of  the 

1  Dipt  Com,  viii.  154,  156. 

2  Ibid.,  vii.  68. 

8  To  Grantham,  Aug.  29,  1782,  Stevens  MSS. 
4  To  Luzerne,  July  21,  1783,  Stevens  MSS. 


THE  NEGOTIATIONS.  187 

United  States  south  of  the  Ohio  are  confined  to 
the  mountains,  following  the  watershed."  l  Jay 
could  not  have  forgotten  that  arguments  similar 
to  Rayneval's  had  been  made  to  him  repeatedly 
in  the  summer  and  autumn  of  1779  by  Lu- 
zerne.  Then  sacrifices  were  to  be  made  to  Spain 
to  induce  her  to  join  in  the  war ;  now  similar 
sacrifices  were  proposed  to  induce  her  to  end  it. 
u  The  policy  of  Spain  at  this  moment  amounts 
to  this,"  wrote  Montmorin  on  July  8th,  "  to  ne- 
gotiate, if  it  is  absolutely  impossible  to  avoid 
it,  ...  but  to  delay  as  long  as  possible  the  mo- 
ment for  explaining  herself,  in  the  hope  that  the 
siege  of  Gibraltar  will  be  favorable.  .  .  .  One 
cannot  disguise  from  one's  self  the  fact  that,  in 
view  of  this  state  of  things,  it  is  almost  wholly 
for  Spain  that  we  continue  the  war.  I  hope  that 
this  truth  may  not  be  too  obvious  to  the  Amer- 
icans, who  have  no  reason  to  be  interested  in 
satisfying  that  power,  and  who  would  soon  be 
wearied  of  the  war  if  it  had  only  this  object."  2 

That  summer  in  the  month  of  June  two  papers 
were  prepared  in  the  French  department  for  for- 
eign affairs.3  The  first  of  these  urged  the  im- 
portance of  limiting  the  United  States,  so  as 

1  To  Luzerne,  Oct.  14,  1782,  De  Circourt,  iii.  290. 

2  Stevens  MSS. 

8  So  stated  by  Mr.  Bancroft,  who  selected  these  papers  for 
publication.  To  Hon.  John  Jay,  Dec.  11,  1802. 


188  JOHN  JAY. 

to  restrain  them  so  long  as  possible  from  ambi- 
tious projects ;  England  must  renounce  Georgia, 
and  Florida  must  be  ceded  to  Spain.  "  We  re- 
gard it  as  necessary  for  the  solidity  of  the  future 
peace,"  is  the  conclusion,  "  to  separate  the  Eng- 
lish absolutely  from  this  part  of  the  continent. 
The  ambitious  views  they  have  shown  in  wish- 
ing to  have  the  Mississippi  for  a  boundary,  the 
extension  they  have  hastened  to  give  to  their 
commerce  in  this  part  of  the  world,  the  com- 
munications that  they  have  established  with  New 
Mexico,  are  sources  of  discord  that  must  be 
eliminated."  1 

On  September  10th  an  intercepted  letter  to 
de  Vergennes  from  Marbois,  Luzerne's  secretary 
at  Philadelphia,  was  transmitted  to  Jay  through 
English  hands.  He  speaks  of  the  opposition 
which  Samuel  Adams  is  raising  in  Massachu- 
setts to  any  terms  of  peace  that  do  not  preserve 
American  rights  to  the  fisheries;  and  Marbois 
suggests  that  the  king  should  intimate  to  Con- 
gress or  the  ministers  "  his  surprise  that  the 
Newfoundland  fisheries  have  been  included  in 
the  additional  instructions;  that  the  United 
States  set  forth  therein  pretensions  without  pay- 
ing regard  to  the  king's  rights,"  etc.  "  It  is  re- 
marked by  some,"  the  letter  concludes,  "  that  as 
England  has  other  fisheries  besides  Newfound- 

1  De  Circourt,  iii.  33. 


THE  NEGOTIATIONS.  189 

land,  she  may  perhaps  endeavour  that  the  Amer- 
icans should  partake  in  that  of  the  Great  Bank, 
in  order  to  conciliate  their  affection,  or  procure 
them  some  compensation,  or  create  a  subject  of 
jealousy  between  them  and  us ;  but  it  does  not 
seem  likely  that  she  will  act  so  contrary  to  her 
true  interest ;  and  were  she  to  do  so,  it  will  be 
better  to  have  declared  at  an  early  period  to  the 
Americans,  that  their  pretension  is  not  well 
founded,  and  that  his  majesty  does  not  mean  to 
support  it."  1  Franklin  doubted  whether  this  let- 
ter reflected  the  opinions  of  the  French  ministry.2 
"  The  channel  ought  to  be  suspected,"  he  wrote 
to  Livingston.  "  It  may  have  received  additions 
and  alterations  ;  but  supposing  it  all  genuine, 
the  forward,  mistaken  zeal  of  a  secretary  of 
legation  should  not  be  imputed  to  the  king." 
De  Vergennes  vindicated  himself  in  similar 
terms  :  "  The  letter,  by  a  forced  interpretation, 
was  designed  to  render  us  suspected  in  regard 
to  the  fisheries.  In  the  first  place,  the  opinion 
of  M.  de  Marbois  is  not  necessarily  that  of  the 
king  ;  and  in  the  next  place,  the  views  indicated 
in  that  despatch  have  not  been  followed."3 
As  a  matter  of  fact  this  opinion  of  M.  de  Mar- 
bois was  identical  with  that  of  the  king,  and  it 

1  Jay's  Jay,  i.  490,  491,  494. 

2  Franklin's  Works,  ix.  463. 

3  Vergennes  to  Luzerne,  Sept.  7,  1783. 


190  JOHN  JAY. 

was  not  followed  because  circumstances  made  it 
impracticable.  The  authenticity  of  the  letter 
was  confessed  by  Marbois  himself  to  Edward 
Bancroft,  when  they  were  returning  on  the  same 
ship  together  after  the  peace,1  and  subsequently 
to  Mr.  W.  B.  Lawrence. 

That  America  had  no  right  to  the  fisheries 
after  becoming  independent  of  the  crown  of 
Great  Britain  had  been  the  familiar  theme  of 
Gerard  and  Luzerne,  and  was  stated  and  re- 
stated with  almost  wearisome  iteration  in  their 
correspondence.  Luzerne's  understanding  about 
the  matter  is  shown  by  a  letter  of  August  15th 
to  de  Vergennes.  He  reports  that  returning 
prisoners  bring  news  that  England  fears  that 
the  ambition  of  France  and  Spain  may  put  a 
stop  to  the  negotiation,  and  is  prepared  to  offer 
America  independence  on  condition  that  she  re- 
mains neutral  during  the  rest  of  the  war ;  that 
several  members  of  Congress  assured  him  that, 
though  "  Spain  and  Holland  might  have  special 
interests  to  discuss,  it  was  not  for  the  Ameri- 
cans to  examine  their  nature  and  basis,  but  .  .  . 
though  the  pretensions  of  the  belligerent  powers 
should  be  as  exorbitant  as  England  asserted, 
that  the  United  States  ought  not  to  lay  down 
their  arms  till  we  had  procured  to  all  our  allies 
the  satisfaction  they  might  wish."  "I  took  this," 

1  John  Adams's  Works,  i.  App.  p.  674. 


THE  NEGOTIATIONS.  191 

continued  the  discreet  Luzerne,  "  as  being  meant 
to  show  that  Holland  and  Spain  were  bound  in 
their  turn  to  continue  the  war  to  procure  the 
fisheries  for  America.  I  replied  that  they  could 
reckon  on  the  moderation  of  the  powers  at  war 
with  England." 1  The  opinions  of  Rayneval  cer- 
tainly coincided  singularly  with  those  of  Mar- 
bois.  Fitzherbert,  about  this  time,  just  before 
Marbois's  letter  reached  Jay,  happened  to  "  drop 
something  "  to  M.  de  Rayneval  about  the  Amer- 
ican claim  to  the  fisheries.  "He  [Rayneval] 
signified  to  me,"  Fitzherbert  wrote  to  Grant  ham, 
"  in  pretty  plain  terms  that  nothing  could  be 
further  from  the  wishes  of  this  court  than  that 
the  said  claim  should  be  admitted,  and  more- 
over that  we,  on  our  part,  were  not  only  bound 
in  interest  to  reject  it,  but  that  we  might  do  so 
consistently  with  the  strictest  principles  of  jus- 
tice." 2 

On  September  9th  Jay  heard  that  Rayneval 
had  left  Versailles  for  England,  traveling  under 
an  assumed  name.  Only  a  few  days  before 
Rayneval  had  explained  to  Jay  his  intended  ab- 
sence by  saying  that  he  was  going  into  the  coun- 
try for  a  few  days.  Knowing  the  confidence  de 
Vergennes  had  in  his  secretary,  and  having  con- 
clusive reasons  now  for  distrusting  the  policy  of 

1  Luzerne  to  Vergennes,  Aug.  15,  1782,  Stevens  MSS. 

2  Fitzherbert  to  Grantham,  Aug.  29,  1782,  Stevens  MSS. 


192  JOHN  JAY. 

France,  Jay  assumed  that  the  object  of  Rayne- 
val's  mission  was  to  suggest  such  a  division  of 
the  Western  Territories  as  would  be  satisfactory 
to  Spain,  and  a  partition  of  the  fisheries  between 
France  and  England.  The  next  day  Jay  decided 
to  urge  Vaughan  to  go  to  England  to  express  the 
American  view  to  Shelburne  in  opposition  to 
Rayneval ;  for  Vaughan  was  still  in  Paris  as 
Shelburne's  unofficial  personal  agent,  and  had 
full  knowledge  of  all  that  had  been  passing. 
Vaughan  at  once  consented,  and  wrote  to  Shel- 
burne asking  him  to  conclude  nothing  with  Ray- 
neval till  his  own  message  had  been  heard,  and 
on  the  llth  he  too  left  Paris.  "  It  would  have 
relieved  me,"  Jay  wrote  to  Livingston,  "  from 
much  anxiety  and  uneasiness  to  have  concerted 
all  these  steps  with  Dr.  Franklin ;  but  on  con- 
versing with  him  about  M.  Rayneval's  journey, 
he  did  not  concur  with  me  in  sentiment  respect- 
ing the  object  of  it,  but  appeared  to  me  to  have 
great  confidence  in  the  Count  [Vergennes],  and 
to  be  much  embarrassed  and  constrained  by  our 
instructions." 

The  mission  of  Rayneval  was  primarily  sug- 
gested by  certain  informal  proposals  which  Ad- 
miral de  Grasse,  then  a  prisoner  on  parol,  had 
communicated  to  de  Vergennes  as  from  Lord 
Shelburne.  Montmorin,  to  whom  de  Vergennes 
had  inclosed  them  with  remarks  indicating  some 


THE  NEGOTIATIONS.  193 

doubts  of  their  authenticity,  wrote  that  he  and 
Florida  Blanca  were  astounded  at  the  English 
propositions,  and  that  the  king  and  ministry 
"  approve  of  your  determination,  and  think  it 
suitable  that  some  one  should  be  sent  to  England 
to  assure  himself  of  the  intentions  of  Lord  Shel- 
burne  and  his  colleagues." 1 

"  My  instructions  were  as  simple  as  they  were 
laconic,"  wrote  Rayneval  many  years  afterwards. 
"  They  asked  that  I  should  demand  the  admis- 
sion or  disavowal  of  the  note  communicated  to 
M.  de  Grasse.  The  first  article  of  the  note  con- 
cerned the  independence  of  America.  .  .  .  Noth- 
ing was  prescribed  in  relation  to  the  other  con- 
ditions to  be  made  with  the  American  commis- 
sioners." 2  And  he  further  said  that  when  the 
English  minister  introduced  other  American 
questions,  he  referred  to  his  ignorance  and  lack 
of  instructions,  and  in  what  he  did  say  strength- 
ened rather  than  weakened  the  demands  of  the 
Americans.  One  conference,  with  the  arguments 
he  used,  Rayneval  describes  in  the  notes  of  his 
mission :  "  At  last  came  the  turn  of  America. 
My  Lord  Shelburne  had  warned  me  that  they 
would  have  much  difficulty  with  America  about 
the  boundaries  as  well  as  about  the  fishery  of 

1  Montmorin  to  Verge  nnes.  Aug.  25,  Stevens  MSS. 

2  Rayneval  to  Monroe,  Nov.  14,  1795  ;  Rives,  Madison,  i. 
655,  App.  0. 


194  JOHN  JAY. 

Newfoundland ;  but  he  hoped  the  king  would 
not  support  them  in  their  demands.  I  answered 
that  I  had  no  doubt  of  the  eagerness  of  the  king 
to  do  what  depended  on  him  to  restrain  the 
Americans  within  the  limits  of  justice  and  rea- 
son. And  my  Lord  wishing  to  know  what  I 
thought  of  their  pretensions,  I  answered  that  I 
was  ignorant  of  those  concerning  the  fishery,  but 
that,  whatever  they  might  be,  it  seemed  to  me 
that  there  was  a  safe  principle  to  follow  in  this 
matter,  namely :  that  the  fishery  in  the  high  sea 
is  res  nullius,  and  that  the  fishery  along  shore 
belongs  of  right  to  the  owners  of  the  shores,  so 
far,  at  least,  as  there  are  no  limitations  by 
treaty.  As  to  the  extent  of  the  boundaries,  I 
supposed  the  Americans  would  take  that  in  their 
charters,  that  is  to  say,  they  would  wish  to  reach 
from  the  Ocean  to  the  Pacific.  My  Lord  Shel- 
burne  treated  the  charters  as  absurd,  and  the 
discussion  did  not  last  longer  because  I  did  not 
wish  either  to  sustain  or  deny  the  American  pre- 
tension ;  I  only  said  that  the  English  minister 
would  find  in  the  negotiations  of  1754,  relating 
to  the  Ohio,  the  boundaries  that  England,  then 
the  sovereign  of  the  United  States,  thought  right 
to  assign  them."  *  This,  perhaps,  was  the  con- 
versation mentioned  briefly  but  significantly  by 
Lord  Edmond  Fitzmaurice,  in  his  "  Life  of  Shel- 
1  De  Circourt.  iii.  46. 


THE  NEGOTIATIONS.  195 

burne."  "  They  then  proceeded  to  speak  about 
America.  Here  Rayneval  played  into  the  hands 
of  the  English  ministers  by  expressing  a  strong 
opinion  against  the  American  claims  to  the  New- 
foundland fishery,  and  to  the  Valley  of  the 
Mississippi  and  the  Ohio.  These  opinions  were 
carefully  noted  by  Shelburne  and  Grantham."  1 
Almost  simultaneously  with  Rayneval  Vaughan 
arrived  in  London,  instructed  by  Jay  to  im- 
press upon  the  ministry  that,  as  every  idea  of 
conquest  had  become  absurd,  nothing  remained 
for  England  but  to  make  friends  with  those 
whom  she  could  not  subdue  ;  and  that  the  way 
to  do  this  was  by  liberally  yielding  every  point 
in  the  negotiation  essential  to  the  interest  and 
happiness  of  America  ;  of  which  the  first  was  that 
of  treating  on  an  equal  footing.  With  independ- 
ence granted,  too,  America  would  be  at  liberty 
to  conclude  peace  so  soon  as  France  was  satisfied, 
without  regard  to  Spain.  As  to  the  terms  of 
peace,  admission  to  the  fisheries  was  essential ; 
the  charters  proved  the  right  of  the  Americans 
to  extend  to  the  Mississippi ;  and  the  peace 
should  be  so  free  from  seeds  of  distrust  or  jeal- 
ousy that  America  would  find  no  need  to  form 
alliances  with  other  nations.  Finally  it  was  ne- 
cessary for  ministers  to  take  a  decided  and  manly 
part.2 

1  De  Circourt,  iii.  263. 

2  Jay  to  Livingston,  Dipl.  Corr.,  viii.  165. 


196  JOHN  JAY. 

So  effective  was  this  reasoning,  that  the  real 
meaning  of  the  situation  was  perceived  at  once. 
Vaughan,  as  he  said  nearly  fifty  years  after- 
wards, was  asked  but  a  single  question :  "  L. 
[Lansdowne,  for  such  at  that  time  was  Lord 
Shelburne's  title]  only  asked  me,  '  Is  the  new 
Commission  necessary  ?  '  and  when  I  answered 
Yes,  it  was  instantly  ordered,  and  I  was  desired 
to  go  back  with  it,  which  I  did,  carrying  the 
messenger  who  had  charge  of  it  in  my  chaise. 
The  grant  of  the  Commission  showed  how  things 
stood,  and  I  departed  joyfully."  l  The  feelings 
of  the  ministers  are  explained  by  Fitzmaurice, 
in  the  "  Life  of  Shelburne."  "  It  became  clear 
to  the  Cabinet,"  he  says,  "  that  a  profound  feud 
had  sprung  up  between  the  Americans  and  their 
European  allies,  and  that  all  they  had  to  do  was 
to  avail  themselves  of  it.  They  at  once  decided 
to  accept  the  American  proposition  as  to  the 
terms  of  the  commission  to  Oswald.  Lord  Ash- 
burton  gave  it  as  his  opinion  that  it  came  within 
the  terms  of  the  Enabling  Act.  The  new  com- 
mission was  then  made  out  at  once  and  dis- 
patched to  Paris  by  Vaughan."  2  That  Vaughari's 
mission  had  effected  a  complete  change  of  policy, 
that  the  signing  the  new  commission  was  part  of 

1  Benjamin  Vaughan  to  Peter  A.  Jay,  Jan.  14,  1830 ;  Jay, 
Address  before  N.  Y.  Hist.  Soc.,  p.  50. 

2  Fitzmaurice,  Life  of  Shelburne,  iii.  267. 


THE  NEGOTIATIONS. 

the  new  plan,  not  a  continuation  of  the  old,  as  is 
supposed  by  some  writers,  are  facts  shown  con- 
clusively by  Shelburne's  letter  to  Oswald,  an- 
nouncing it :  u  Having  said  and  done  everything 
which  has  been  desired,  there  is  nothing  for  me 
to  trouble  you  with  except  to  add  that  we  have 
put  the  greatest  confidence,  I  believe,  ever  placed 
in  man,  in  the  American  Commissioners.  It  is 
now  to  be  seen  how  far  they  or  America  are  to 
be  depended  upon.  I  will  not  detain  you  by 
enumerating  the  difficulties  which  have  occurred. 
There  never  was  a  greater  risk  known ;  I  hope 
the  public  will  be  the  gainer  by  it,  else  our  heads 
must  answer  for  it,  and  deservedly."  l 

To  persons  not  versed  in  public  affairs  the 
wording  of  a  commission  may  seem  a  matter 
of  minor  importance.  What  difference  could  it 
make  whether  Oswald  was  empowered  to  treat 
with  the  colonies  as  such,  or  with  the  United 
States,  so  long  as  independence  was  to  be 
granted  absolutely  by  the  first  clause  of  the 
treaty  ?  The  difference  was,  that  in  the  first 
case  independence  still  remained  something  to 
be  bargained  for;  also,  most  important  of  all, 
that  the  States  were  technically  colonies  of 
Great  Britain  till  the  treaty  was  signed,  and 
could  claim  the  fisheries,  or  the  Western  Terri- 

1  Shelburne  to  Oswald,  Sept.  23,  1782,  Fitzmaurice,  Life  of 
Shelburne,  iii.  2(57,  2G8. 


198  JOHN  JAY. 

tory  as  such,  only  by  virtue  of  their  charters,  or 
by  established  custom.  But,  as  de  Vergennes 
repeatedly  stated,  these  claims  could  not  be  log- 
ically sustained  by  the  colonies  as  against  Eng- 
land, since  their  rights  were  derived  through 
their  connection  with  the  crown.  The  "  United 
States,"  however,  treating  for  peace  with  Great 
Britain,  were  in  an  entirely  different  position. 
The  two  powers  were  on  an  equal  footing ;  the 
only  question  was  how  to  make  a  permanent 
peace  between  them.  The  colonial  claims,  well 
founded  or  not,  became  unimportant ;  instead  of 
a  treaty  of  more  or  less  grudging  concession 
from  a  superior  power  to  its  revolted  colonies, 
the  treaty  became  one  of  territorial  partition 
between  equals  seeking  a  permanent  basis  of 
conciliation.  Indeed,  the  preliminary  grant  of 
independence  may  be  said  to  have  carried  with 
it  a  grant  of  the  Western  Territory. 

The  mission  of  Vaughan  marked  also  a  com- 
plete change  of  policy  on  the  part  of  the  Amer- 
icans. Heretofore  their  attitude  was  that  of  sus- 
picion towards  England  and  reliance  on  France  ; 
now  mutual  confidence  was  established  between 
the  English  ministry  and  the  American  commis- 
sioners, and  both  parties  were  anxious  to  arrange 
satisfactory  terms  of  peace  as  speedily  as  possi- 
ble, without  further  reference  to  France  or  her 
ally,  Spain.  The  bold,  prompt  decision  of  Jay, 


THE  NEGOTIATIONS.  199 

reached  without  consulting  even  his  single  col- 
league in  Paris,  growing  out  of  his  clear  percep- 
tion of  the  facts  as  they  really  were,  by  his 
rejecting  all  compromises,  though  thereby  the 
negotiations  with  France  and  Spain  should  be 
brought  to  a  stop,  had  at  last  resulted  in  plac- 
ing the  American  negotiations  in  a  condition  in 
which  a  satisfactory  conclusion  on  all  points 
was  now  little  more  than  a  matter  of  detail  to 
be  settled  by  a  few  frank  conversations. 

"On  the  27th  of  September,"  wrote  Jay  to 
Livingston,  "  Mr.  Vaughan  returned  here  from 
England  with  the  courier  that  brought  Mr.  Os- 
wald's new  commission,  and  very  happy  were 
we  to  see  it.  ...  Mr.  Vaughan  greatly  merits 
our  acknowledgments."  l  The  day  before,  in 
the  anteroom  of  de  Vergennes  at  Versailles, 
Aranda  had.  made  a  final  attempt  to  induce  Jay 
to  discuss  a  treaty  with  Spain  without  a  com- 
munication of  his  powers,  as  Spain  had  not  ac- 
knowledged the  independence  of  the  United 
States;  and  Jay  had  declared  that  both  the 
terms  of  his  commission  and  tl^e  dignity  of 
America  forbade  his  treating  on  any  other  than 
an  equal  footing.2  De  Vergennes,  happening 
to  interrupt  them,  again  opposed  Jay's  argu- 
ment, but  to  no  purpose.  On  the  same  day 

1  Dipl.  Corr.,  viii.  201. 

2  Ibid.,  viii.  202. 


200  JOHN  JAY. 

Jay  met  Rayneval,  who  spoke  in  favor  of  his 
conciliatory  line,  and  by  his  conversation  gave 
rise  to  the  suspicion  that  Spain  had  been  re- 
cently confirmed  in  her  claims  by  French  ad- 
vice.1 This  was  the  last  attempt  at  negotiation 
with  Spain  in  Europe.  From  first  to  last  she 
had  refused  to  acknowledge  the  independence  of 
the  United  States,  and  had  pursued  a  policy 
which,  even  in  the  eyes  of  de  Vergennes,  was 
ungenerous  and  unwisely  selfish. 

Under  the  new  commission  progress  was  rapid, 
though  some  delay  was  caused  by  the  illness  of 
Franklin.  "Upon  my  saying,"  wrote  Oswald 
on  October  2d,  "  how  hard  it  was  that  France 
should  pretend  to  saddle  us  with  all  their  pri- 
vate engagements  with  Spain,  he  [Jay]  replied : 
4  We  will  allow  no  such  thing.  For  we  shall 
say  to  France :  The  agreement  we  made  with 
you  we  shall  faithfully  perform ;  but  if  you  have 
entered  into  any  separate  measures  with  other 
people  not  included  in  that  agreement,  and  will 
load  the  negotiation  with  their  demands,  we 
shall  give  ourselves  no  concern  about  them.'  "  2 
Accordingly  on  October  5th,  without  consulting 
de  Vergennes,  Jay  handed  to  Oswald  a  plan  of 
a  treaty,  to  the  terms  of  which  three  days  later 
Oswald  assented,  and  which  he  transmitted  at 

1  Jay,  The  Peace  Negotiations,  p.  127,  n.  2. 

2  Oswald  to  Townshend,  Oct.  2,  Stevens  MSS. 


THE  NEGOTIATIONS.  201 

once  to  England.  This  plan  proposed  for  the 
northeastern  boundary  the  rivers  St.  John  and 
the  Madawaska ;  the  "northwest  angle  "  of  Nova 
Scotia,  so-called,  to  be  determined,  and  the  line 
drawn  thence  according  to  the  treaty  of  1763. 
This  and  the  other  boundaries  were  settled  in 
the  first  article,  Oswald  not  "  asserting  the 
claims  of  the  English  Crown  over  the  ungranted 
domains,  deeming  that  no  real  distinction  would 
be  drawn  between  them  and  the  other  sovereign 
rights,  which  were  necessarily  to  be  ceded."  1 
These  other  articles  provided  for  a  perpetual 
peace,  secured  the  right  to  the  fisheries,  includ- 
ing a  liberty  to  dry  fish  on  the  shores  of  New- 
foundland, and  established  the  navigation  of  the 
Mississippi,  to  which  Jay  added  a  clause  for 
reciprocal  freedom  of  commerce.2  No  provision 
was  made  for  debts  contracted  prior  to  1775, 
nor  for  compensation  to  the  royalists,  both 
Franklin  and  Jay  refusing  to  yield  in  either  re- 
spect, while  Oswald  was  authorized  not  to  in- 
sist on  them.3  "  Mr.  Jay  said  to  me  last  night," 
wrote  Oswald  on  the  8th,  "  once  we  have  signed 
this  treaty  we  shall  have  no  more  to  do  but  to 
look  on  and  see  what  people  are  about  here. 
They  will  not  like  to  find  we  are  so  far  ad- 

1  Fitzmaurice,  Life  of  Shelburne,  iii.  269. 

2  Ibid.;  Dipt.  Corr.,  x.  88,  92. 

2  Fitzmaurice,  Life  of  Shelburne,  iii.  269,  281. 


202  JOHN  JAY. 

vanced."  1  And  to  a  desire  to  keep  the  negotia- 
tion separate  and  conclude  it  before  France  was 
ready,  Oswald  attributed  his  own  seeming  haste 
in  agreeing  to  Jay's  terms.  "  I  knew,"  he  wrote 
in  explanation,  "  it  hath  always  been  the  wish 
of  the  ministry  of  this  court  that  the  Ameri- 
cans should  go  no  faster  in  their  treaty  than 
they  do  themselves,  and,  indeed,  that  the  main 
question  regarding  America  should  not  be  too 
quickly  determined.  On  this  account  I  thought 
it  best  to  assent  to  the  propositions  as  offered, 
in  this  general  way."  2  "I  look  upon  the  trea- 
ty," he  said,  "  as  now  closed." 

But  meantime  news  was  received  in  England 
of  the  great  victory  at  Gibraltar,  when  Lord 
Howe  succeeded  in  relieving  the  fortress  in  spite 
of  the  combined  fleets  of  France  and  Spain, 
after  a  siege  of  three  years.  The  ministry  at 
once  determined  to  resist  the  demands  which  de 
Vergennes  had  formulated  on  October  6th,  and 
to- try  to  modify  the  American  demands  as  well, 
considering  that  the  feud  between  the  allies  was 
already  established,  and  that  in  no  case  would 
the  Americans  continue  the  war  for  purely 
Spanish  purposes.  To  strengthen  Oswald  and 
relieve  him  of  the  responsibility  of  making  new 
demands,  Henry  Strachey,  at  one  time  secretary 

1  Oswald  to  Shelburne,  Oct.  8,  1782,  Stevens  MSS. 

2  Oswald  to  Townshend,  Oct.  11,  1782,  Stevens  MSS. 


THE  NEGOTIATIONS.  203 

to  Clive  and  to  Lord  Howe's  commission,  and 
now  Under  Secretary  for  Foreign  Affairs,  was 
sent  to  his  assistance.  He  was  instructed  to 
urge  the  French  boundary  of  Canada,  and  the 
claims  of  England  to  the  lands  between  the  Mis- 
sissippi and  the  western  boundaries  of  the  States, 
with  a  view  to  securing  compensation  for  the 
refugees : l  to  confine  the  Americans  to  a  drift 
fishery,  without  the  right  of  drying  fish,  and  to 
omit  the  clause  respecting  freedom  of  commerce. 
Above  all,  the  claims  of  the  refugees  were  to  be 
secured,  and  the  payment  of  the  debts  prior  to 
1775  ;  "  honest  debts  must  be  honestly  paid  and 
in  honest  money." 

While  Strachey  was  on  his  way,  armed  with 
books  and  papers  relating  to  the  northern  bound- 
aries, Jay  met  Rayneval  at  dinner  at  Dr.  Frank- 
lin's, and  the  secretary  again  contested  the 
American  claims  to  the  backlands  and  to  the 
fisheries.  But  fortunately  the  man  who  had 
the  most  accurate  knowledge  of  the  fishery 
claims  and  of  the  boundary  of  Massachusetts, 
John  Adams,  was  also  hurrying  to  Paris  at  Jay's 
summons,  and  arrived  there  on  October  26th. 

Adams  at  once  called  on  an  old  friend  and 
countryman,  Ridley,  who,  as  Adams  noted  in  his 
diary,  was  "full  of  Jay's  firmness  and  inde- 

1  Fitzmaurice,   Life  of  Shelburne,  iii.  280,  281,  282 ;    Shel- 
burne  to  Oswald,  Oct.  21,  1782. 


204  JOHN  JAY. 

pendence  ;  Jay  has  taken  upon  himself  to  act 
without  asking  advice,  or  even  communicating 
with  the  Count  de  Vergennes,  and  this  even  in 
opposition  to  an  instruction,"  which,  interjected 
Adams,  fc'  has  never  yet  been  communicated  to 
me.  .  .  .  Jay  declares  roundly,  that  he  will  never 
set  his  hand  to  a  bad  peace.  Congress  may  ap- 
point another,  but  he  will  make  a  good  peace  or 
none."  l  Adams  expected  to  call  on  Franklin 
on  Sunday,  but  heard  that  he  had  "  broke  up 
the  practice  of  inviting  everybody  to  dine  with 
him  "  that  day  "  at  Passy ;  that  he  is  getting 
better ;  the  gout  left  him  weak ;  but  he  begins 
to  sit  at  table."  2  On  Monday,  October  28th, 
Jay  wrote  :  "  Mr.  Adam^  was  with  me  three 
hours  this  morning.  I  mentioned  to  him  the 
progress  and  present  state  of  our  negotiation 
with  Britain,  my  conjectures  of  the  views  of 
France  and  Spain,  and  the  part  which  it  ap- 
peared to  me  advisable  for  us  to  act.  He  con- 
curred with  me  in  sentiment  on  all  these 
points." 3  But  Jay  does  not  mention  here  or 
elsewhere  the  discomfort  and  distress  which  did 
not  escape  the  keen  eyes  of  his  kind-hearted 
visitor.  "  I  found  Jay,"  Adams  wrote,  "  in  very 
delicate  health,  in  the  midst  of  great  affairs,  and 

1  John  Adams's  Works,  iii.  299,  300. 

2  Ibid.,  299. 

8  Jay's  Jay,  i.  152. 


THE  NEGOTIATIONS.  205 

without  a  clerk.  He  told  me  he  had  scarcely 
strength  to  draw  up  a  statement  of  the  negotia- 
tion hitherto,  but  that  he  must  do  it  for  Con- 
gress. I  offered  him  the  assistance  that  Mr. 
Thaxter  could  afford  him  in  copying,  which  he 
accepted."  l  In  their  opinions  on  the  state  of 
European  affairs  at  the  moment,  they  were  in 
perfect  harmony :  "  Nothing  that  has  happened 
since  the  beginning  of  the  controversy  in  1761," 
were  Adams's  strong  words,  "  has  ever  struck 
me  more  forcibly  or  affected  me  more  intimately 
than  that  entire  coincidence  of  principle  and 
opinion  between  him  and  me." 

Franklin's  private  views  were  still  widely  di- 
vergent from  those  of  his  colleagues.  In  July 
of  the  following  year  he  made  the  definite  state- 
ment to  Livingston  :  "  With  respect  to  myself, 
neither  the  letter  from  M.  Marbois,  handed  in 
through  the  British  negotiators  (a  suspicious 
channel),  nor  the  conversation  concerning  the 
fishery,  the  boundaries,  the  royalists,  etc.,  re- 
commending moderation  in  our  demands,  are  of 
weight  sufficient  in  my  mind  to  fix  an  opinion 
that  this  court  wished  to  restrain  us  in  obtaining 
any  degree  of  advantage  we  could  fairly  prevail 
on  our  enemies  to  accord  ;  "  2  and  long  after  the 

1  Adams  to  Jonathan   Jackson,  Nov.  17,  1782,  John  Ad- 
ams's Works,  ix.  514. 

2  July  23,  1783,  Dipl.  Corr.,  iv.  138,  139. 


206  JOHN  JAY. 

preliminary  articles  were  signed,  he  was  fond  of 
saying  that  M.  de  Vergennes  had  never  deceived 
him.  Yet  he  apparently  did  not  resent  Jay's 
independent  action  in  sending  Vaughan  to  Shel- 
burne,  though  he  was  now  a  man  of  seventy-six, 
while  Jay  was  only  thirty-seven  years  of  age. 
The  friendship  between  the  two  was  never 
strained,  far  less  broken;  throughout  the  fol- 
lowing spring  and  summer  they  lived  together 
at  Passy  in  the  most  affectionate  intimacy,  and 
within  a  year  Franklin  appointed  Jay  one  of  his 
executors.1  Never  a  word  was  said  by  either 
reflecting  on  the  character  or  the  wisdom  of  the 
other.  It  is,  then,  strange  that  the  biographers 
and  admirers  of  Franklin  should  have  thought 
fit,  without  regard  to  facts,  to  disparage  the  ser- 
vices of  the  man  whom  Franklin  himself  ever 
loved  and  esteemed.  Mr.  Sparks  took  this  tone, 
remarking  :  "  In  vain  did  Dr.  Franklin  essay  to 
remove  these  groundless  impressions  from  the 
mind  of  Mr.  Jay ;  "  2  the  groundless  impressions 
being  that  France  and  Spain  were  opposed  to 
the  American  claims.  Elsewhere  referring  to 
Jay's  refusal  to  accept  de  Vergennes'  advice  to 
treat  under  the  designation  of  "  colonies,"  the 
same  writer  speaks  of  Franklin  groaning  "  dur- 
ing the  month  wasted  upon  this  nonsense" 

1  Sept.  11,  1783. 

2  Sparks,  Franklin,  p.  482. 


THE  NEGOTIATIONS.  207 

More  recently  Mr.  Henry  Cabot  Lodge  has  as- 
serted that  "  the  negotiations  seemed  almost  con- 
cluded, when  Jay  appeared  on  the  scene  at 
Paris."  l  While  Jay,  "  disliking  and  mistrust- 
ing Spain,  and  believing  Franklin  too  ready  to 
yield  to  France,  checked  the  negotiation,  which 
was  prospering  so  well  with  Shelburne."  2  And 
finally  one  of  the  last  of  Franklin's  biographers, 
the  Rev.  Edward  E.  Hale,  refers  to  the  word- 
ing of  Oswald's  commission  as  "  a  point  which 
he  [Franklin]  rightly  thought  of  minor  import- 
ance," and  then,  speaking  of  Vaughan's  mission, 
says:  "It  seems  also  impossible  to  decide  just 
what  credit  should  be  assigned  to  Mr.  Jay.  It 
must  be  acknowledged  that  he  acted  in  a  man- 
ner contrary  to  his  instructions.  It  must  also 
be  acknowledged,  that  matters  turned  out  very 
much  according  to  his  mind.  But  that  settles 
nothing.  The  question  must  be,  4  Did  Vaughan's 
mission  decide  Shelburne  to  accede  to  the  desires 
of  America  ? '  And  this  can  never  be  certainly 
known."  3 

The  conduct  of  Franklin  during  the  negotia- 
tions can  surely  be  explained  without  any  dis- 
paragement of  his  colleagues.  The  Adams  fam- 
ily, in  three  successive  generations,  have  offered 

1  Lodge,  Hist,  of  the  EnglisfF  Colonies  in  America,  518. 

2  Ibid. 

8  Hale,  Franklin  in  France,  ii.  146. 


208  JOHN  JAY. 

three  such  explanations,  each  of  them  adequate. 
If  that  of  John  Adams  is  rejected,  as  the  per- 
haps hasty  and  exaggerated  expression  of  that 
blunt,  eccentric  man,  and  that  of  John  Quincy 
Adams  as  also  colored  possibly  by  unconscious 
prejudice  though  stated  with  classic  elegance, 
one  may  accept  without  offense  the  explanation 
so  fairly  offered  by  Charles  Francis  Adams : 
that  Franklin  was,  in  the  first  place,  minister  to 
the  court  of  France,  and  that  he  was  only  sub- 
sequently and  secondarily  a  negotiator  of  the 
peace,  and  that  in  his  primary  capacity,  with  the 
grave  responsibilities  it  imposed,  he  could  nei- 
ther with  propriety,  nor  with  advantage  to  this 
country,  exhibit  the  boldness  of  Jay,  who  acted 
simply  as  a  negotiator  with  England  unhampered 
by  the  obligation  to  the  court  of  France,  which 
affected  Franklin. 

But  whatever  his  private  opinions  may  have 
been,  they  were  not  allowed  by  Franklin  to  in- 
fluence his  public  conduct,  and  from  this  time 
to  the  conclusion  of  the  treaty  he  acted  in  per- 
fect harmony  with  his  colleagues.  On  the  29th 
Oswald  introduced  Strachey,  who  had  arrived 
the  day  before,  to  Jay,  and  then,  after  being 
joined  by  Adams,  all  went  out  to  Dr.  Franklin's, 
at  Passy,  and  at  both  these  places  Adams  made 
his  memorable  suggestion  that  the  questions  of 
payment  of  the  debts  and  of  compensating  the 


THE  NEGOTIATIONS.  209 

Tories  were  distinct.  That  evening,  apparently, 
Adams  spent  with  Franklin.  "  I  told  him,  with- 
out reserve,"  wrote  Adams,  "  my  opinion  of  the 
policy  of  this  court,  and  of  the  principle,  wisdom, 
and  firmness  with  which  Mr.  Jay  had  conducted 
the  negotiation  in  his  sickness  and  my  absence, 
and  that  I  was  determined  to  support  Mr.  Jay 
to  the  utmost  of  my  power  in  the  pursuit  of  the 
same  system.  The  Doctor  heard  me  patiently, 
but  said  nothing.  At  the  first  conference  we 
had  afterwards  with  Mr.  Oswald,  in  considering 
one  point  and  another,  Dr.  Franklin  turned  to 
Mr.  Jay  and  said,  4 1  am  of  your  opinion,  and 
will  go  on  with  these  gentlemen  in  the  business 
without  consulting  this  court. '  "  1  This  may 
have  been  at  the  first  regular  meeting  of  the  com- 
missioners, on  October  30th,  to  examine  books 
and  papers.  It  was  doubtless  on  some  earlier 
and  more  private  occasion  that  the  characteris- 
tic incident  occurred,  related  by  Trescott,2  and 
quoted  by  Parton :  3  "  '  Would  you  break  your 
instructions  ? '  Franklin  asked  him  one  day. 
'  Yes,'  replied  Jay,  taking  his  pipe  from  his 
mouth,  '  as  I  break  this  pipe ; '  and  so  saying 
Jay  threw  the  fragments  into  the  fire."  The 
significance  of  this  public  acknowledgment  by 

1  John  Adams's  Works,  iii.  336. 

2  Diplomacy  of  the  U.  £,  i.  121. 

8  Parton,  Life  of  Franklin,  ii  488. 


210  JOHN  JAY. 

Franklin  must  not  be  overlooked,  for  thereby 
he  became  fully  entitled  to  the  credit,  or  dis- 
credit, of  breaking  the  instruction  to  act  con- 
stantly by  the  advice  of  France,  which  credit, 
or  discredit,  is  usually  reserved  only  for  Jay 
and  Adams. 

Adams's  happy  suggestion  to  separate  the 
claims  of  the  Tories  from  those  of  the  British 
creditors  struck  "  Mr.  Strachey  with  peculiar 
pleasure.  I  saw  it  instantly  smiling  in  every 
line  of  his  face,"  wrote  Adams  in  his  diary. 
Franklin  and  Jay  agreed  to  the  payment  of  all 
just  debts;  and  Strachey  at  once  wrote  home 
that  he  thought  something  might  be  gained.1 
On  the  30th  and  31st  the  northeastern  bound- 
ary was  discussed.  The  English  at  first  wanted 
the  whole  of  Maine,  or  at  least  the  Penobscot 
and  Kennebec,  but  Adams  convinced  even  that 
"most  eager,  earnest,  pointed  spirit,"  as  he 
called  Strachey,  by  exhibiting  official  docu- 
ments of  former  royal  governors  of  Massachu- 
setts. The  boundary  of  Maine  was  by  a  com- 
promise settled  at  the  St.  Croix,  by  which,  as 
was  afterward  decided  by  the  commissioners 
appointed  under  Jay's  treaty  of  1794,  was 
meant  the  Schoodic ;  and  thence  a  choice  was 
given  for  the  northern  boundary  of  the  States 
between  two  lines,  one  along  the  forty-fifth 
1  October  29,  1782. 


THE  NEGOTIATIONS.  211 

parallel,  the  other  through  the  centre  of  the 
lakes  to  the  source  of  the  Mississippi.  The 
next  day,  November  2d,  the  fisheries  were  dis- 
cussed, and  the  Americans  surrendered  the  right 
of  drying  fish,  on  condition  that  Nova  Scotia 
should  be  substituted  for  Newfoundland  ;  but 
Jay  and  Adams  both  objected  strongly  to  the 
English  notion  of  separating  the  English  and 
American  fisheries.  On  November  3d  compen- 
sation to  the  royalists  was  urged  by  Strachey, 
but  to  no  purpose.  The  greater  part  of  No- 
vember 4th  was  spent  by  Adams  and  Jay  at 
Oswald's,  with  Strachey;  "from  11  to  3,  in 
drawing  up  the  articles  respecting  debts,  and 
Tories,  and  fishery ; "  the  last  article  Adams 
drafted  himself ;  and  a  suggestion  was  ac- 
cepted by  Oswald  that  the  claims  of  the  royal- 
ists should  be  recommended  by  Congress  to  the 
States.1  In  the  evening,  till  near  eleven  o'clock, 
Jay  and  Adams  were  at  Oswald's  again  with 
Strachey,  "  as  artful  and  insinuating  a  man  as 
they  could  send,,"  said  Adams  ; 2  and  they  agreed 
to  clauses  concerning  the  debts  and  the  confis- 
cation of  lands  belonging  to  Tories.  The  same 
day  Strachey  made  a  final  appeal  by  letter  for 
u  stipulations  for  the  restitution,  compensation, 
and  amnesty,"  to  which  the  commissioners  re- 

2  John  Adams's  Works,  iii.  302. 
1  Ibid.,  iii.  303. 


212  JOHN  JAY. 

plied  :  "  We  should  be  sorry  if  the  absolute  im- 
possibility of  our  complying  further  with  your 
proposition  should  induce  Great  Britain  to  con- 
tinue the  war  for  the  sake  of  those  who  caused 
and  prolonged  it."  On  November  5th  Strachey 
returned  to  England,  taking  with  him  a  copy 
of  the  articles  with  a  marked  map ;  a  copy 
which  Jay  compared  scrupulously  with  the 
original  draft,  allowing  no  alteration.  "  I  did 
not  expect  to  find  him  so  uncommonly  stiff 
about  the  matter,"  1  complained  Oswald  ;  while 
Strachey  wrote:  "You  will  see  by  the  treaty 
all  that  could  be  obtained."  Jay  was  particu- 
larly anxious  that  this  treaty  should  be  ac- 
cepted. "  He  hoped,"  wrote  Oswald  to  Town- 
shend,  on  November  6th,  "  we  would  not  let  this 
opportunity  slip,  but  resolve  speedily  to  wind 
up  the  long  dispute,  so  that  we  might  become 
again  as  one  people;  "  and  he  suggested  that  the 
American  negotiators  were  now  in  a  better  sit- 
uation than  when  their  instructions  were  given, 
and  that  if  the  business  were  reopened  they 
might  claim  compensation  for  British  depreda- 
tions. 

During  Strachey's  absence  the  commissioners 
received  further  light  on  the  policy  of  de  Ver- 
gennes,  when  Adams  visited  him  for  the  first 
time  on  the  10th,  and  informed  him  that  they 

1  Oswald  to  Strachey,  Nov.  8,  1782. 


THE  NEGOTIATIONS.  213 

and  the  English  differed  on  two  points,  the 
Tories,  and  the  Penobscot.  De  Vergennes  and 
Rayneval  both  advocated  the  cause  of  the  To- 
ries, with  the  object,  as  Adams  suggested  to 
Oswald's  secretary,  Whitefoord,  of  keeping  up 
in  America  "  a  French  party  and  an  English 
party."  l  On  the  15th,  he  discussed  the  ques- 
tion of  the  Tories  again  with  Oswald,  with  the 
result  that  the  next  day  Oswald  urged  through 
Vaughan  that  Jay  should  go  to  England,  as  he 
thought  Jay  could  convince  the  ministry.  But 
Jay  replied  that  if  he  should  go  it  must  be  either 
"  with  or  without  the  knowledge  and  advice  of 
this  court,  and,  in  either  case,  it  would  give  rise 
to  jealousies  :  he  would  not  go."  2  Adams,  how- 
ever, felt  confident,  "because,"  as  he  wrote  to 
Livingston,  "  I  find  Mr.  Jay  precisely  in  the 
same  sentiments,  after  all  the  observations  and 
reflections  he  has  made  in  Europe,  and  Dr. 
Franklin,  at  last,  at  least  appears  to  coincide 
with  us.  We  are  all  three  perfectly  united  in 
the  affair  of  the  Tories  and  of  Sagadahoc,  the 
only  points  in  which  the  British  minister  pre- 
tends to  differ  from  us.  "  3  A  few  days  later  he 
discussed  with  Franklin  the  French  policy  of 
trying  to  deprive  the  United  States  of  the  fish- 

1  John  Adams's  Works,  iii.  307. 

2  Ibid.,  iii.  312. 

8  Nov.  11,  Ibid.,  viii.  9. 


214  JOHN  JAY. 

eries  and  the  Mississippi,  and  Franklin  agreed 
that  the  French  were  blind  to  their  true  inter- 
ests. "  We  must  be  firm  and  steady  and  should 
do  very  well,"  said  Adams :  and  Franklin  re- 
plied, he  "believed  we  should  do  very  well  and 
carry  the  points." l  The  day  before,  de  Ver- 
gennes  had  made  another  argument  in  behalf  of 
the  Tories,  and  three  days  later  Lafayette  gave 
Jay  a  message  from  Aranda  that,  "  as  the  lands 
upon  the  Mississippi  were  not  yet  determined 
whether  they  were  to  belong  to  England  or 
Spain,  he  could  not  yet  settle  that  matter."  2 

In  the  mean  time  Vaughan  had  followed 
Strachey  and  Kayneval  to  England,  to  explain 
the  American  position,  and  Oswald  had  written 
to  Townshend,  reporting  a  conversation  with 
Jay  and  Adams  in  which  they  said  "  that  if 
peace  with  Great  Britain  was  not  to  be  had  on 
any  other  terms  than  their  agreeing  to  these 
provisions,"  relating  to  the  Tories,  "  the  war 
must  go  on,  although  it  should  be  for  seven 
years  to  come,  and  that  neither  they  nor  the 
Congress  had  any  power  in  the  matter."  3  But 
Shelburne  was  determined  to  make  a  final  at- 
tempt to  save  the  royalists,  and  drew  up  fresh 
instructions  securing  them  indemnity ;  he  also 

1  John  Adams's  Works,  iii.  321. 

2  Nov.  23,  Ibid.,  iii.  327. 
8  Nov.  15,  1782. 


THE  NEGOTIATIONS.  215 

sought  payment  of  debts  accrued  subsequently 
to  1775,  and  limitation  of  the  right  of  fishing 
to  a  further  distance  from  shore.1  To  coerce 
the  commissioners  he  suggested  that  their  cause 
would  not  gain  by  being  deferred  till  Parlia- 
ment should  meet,  on  December  5th,  the  date  to 
which  the  prorogation  had  been  extended.  Fitz- 
herbert  also,  who  was  added  to  the  commission, 
was  directed  "  to  avail  himself  of  France  so  far 
as  he  may  judge  it  prudent  from  circumstances." 
But  the  instructions  really  meant  much  less  than 
they  seemed  to;  Shelburne  could  not  hope  to 
remain  in  power  if  the  negotiation  failed.  "  It 
is  our  determination,"  he  had  written  to  Fitzher- 
bert  in  October,  "  that  it  shall  be  either  war  or 
peace  before  we  meet  the  Parliament ; " 2  and 
accordingly  Oswald  was  authorized  to  sign  when- 
ever Fitzherbert,  Strachey,  and  himself  thought 
it  expedient. 

"  The  Tories  stick ;  Strachey  is  coming  again, 
and  may  be  expected  to-day,"  said  Oswald  to 
Jay,  as  he  read  his  despatches  on  the  22d.3  On 
the  24th  Strachey  arrived  in  Paris,  and  the  day 
following,  all  the  commissioners  met  at  Oswald's 
lodgings.  Strachey  announced  that  the  cabinet 
unanimously  condemned  the  article  respecting 

1  Fitzmaurice,  Life  of  Shelburne,  iii.  298. 

2  Ibid.,  iii.  287. 

3  John  Adams's  Works,  iii.  324. 


216  JOHN  JAY. 

the  Tories.  "  The  affair  of  the  fisheries,  too,  was 
somewhat  altered,"  wrote  Adams  in  his  diary. 
"  They  could  not  admit  us  to  dry  on  the  coasts 
of  Nova  Scotia,  nor  to  fish  within  three  leagues 
of  the  coast,  nor  within  fifteen  leagues  of  the 
coast  of  Cape  Breton.  The  boundary  they  did 
not  approve  :  they  thought  it  too  extended,  too 
vast  a  country,  but  they  would  not  make  a  diffi- 
culty. ...  I  could  not  help  observing  that  the 
ideas  respecting  the  fisheries  appeared  to  me  to 
come  piping  hot  from  Versailles."  l  "  The  res- 
titution of  the  property  of  the  loyalists,"  was, 
however,  "  the  grand  point  on  which  a  final  set- 
tlement depended.  Jay  asked  if  this  was  the 
ultimatum  of  the  ministry,  and  Strachey  an- 
swered reluctantly  '  No,'  and  admitted  that  Os- 
wald had  absolute  authority  to  conclude  and 
sign."  Adams  then,  by  documents,  disproved 
the  exclusive  rights  of  the  French  to  any  part  of 
the  fishery ;  he  argued  the  dependence  of  New 
England  on  the  fishery,  and  remarked  that  "  if 
a  germ  of  war  was  left  anywhere  "  it  would 
most  probably  be  in  that  article.  The  proposi- 
tion concerning  the  royalists  was  unanimously 
rejected,  Franklin  being  especially  emphatic. 
For  the  next  four  days,  the  discussion  continued. 
On  the  28th  Adams  drew  up  an  article  on  the 
fishery,  and  the  same  day  Laurens  arrived  for 
1  John  Adams's  Works,  iii.  327,  328. 


THE  NEGOTIATIONS.  217 

the  first  time,  and  inserted,  on  the  day  of  sign- 
ing, the  clause,  which  afterwards  caused  so  much 
controversy,  prohibiting  the  British  troops  from 
"  carrying  away  any  negroes  or  other  property 
of  the  inhabitants."  On  the  29th  Strachey 
endeavored  to  have  the  word  "  liberty  "  substi- 
tuted for  "  right  "  in  the  fishery  clause,  but  was 
boldly  answered  by  Adams.  Fitzherbert  pro- 
posed sending  a  courier  to  London  for  advice 
before  signing,  but  was  met  by  the  suggestion 
that,  if  so,  the  courier  should  take  also  a  memo- 
rial for  damages  done  by  British  troops.  After 
consulting  together,  the  English  commissioners 
agreed  to  accept  the  American  terms  about  the 
fisheries,  and  their  ultimatum :  that  there  should 
be  no  further  persecution  of  the  royalists,  and 
that  Congress  should  recommend  the  various 
state  legislatures  to  restore  confiscated  estates 
of  English  citizens  and  of  Americans  who  had 
not  taken  up  arms.1  Notice  of  their  agreement 
was  then  communicated  to  de  Vergennes.2  "  Are 
we  to  be  hanged  or  applauded,"  wrote  Strachey 
that  evening,  "  for  thus  rescuing  you  from  the 
American  war  ?  If  this  is  not  as  good  a  peace 
as  was  expected,  I  am  confident  it  is  the  best 
that  could  have  been  made."  On  November 
30th,  the  treaties  were  signed,  sealed,  and  deliv- 

1  Bancroft,  x.  589. 

2  Franklins  Works,  ix.  488. 


218  JOHN  JAY. 

ered,  and  all  went  out  to  Passy  to  dine  with 
Dr.  Franklin.1  It  was  merely  provisional  arti- 
cles that  were  signed  as  yet,  but  they  were  to 
constitute  the  treaty  of  peace  between  Great 
Britain  and  the  United  States  so  soon  as  a  defi- 
nite treaty  should  be  concluded  between  Great 
Britain  and  France.  The  government  was  to 
be  bound  only  by  what  Oswald  should  sign  ; 
and  the  commissioners  were  prompt  to  seize  the 
happy  moment.  "  We  must  have  signed,"  said 
Adams,  "or  lost  the  peace.  The  peace  de- 
pended on  a  day.  If  we  had  not  signed,  the 
Ministry  would  have  changed."  2 

Relying  perhaps  on  the  instructions  of  Con- 
gress, and  underestimating  the  ability  of  the 
American  commissioners,  de  Vergennes  had 
taken  little  pains  to  inform  himself  of  the  pro- 
gress of  the  negotiations.  "  It  behooves  us 
to  leave  them  to  their  illusions,"  he  wrote  to 
Luzerne,  in  October,  "  to  do  everything  we  can 
to  make  them  fancy  that  we  share  them,  and 
unostentatiously  to  defeat  any  attempts  to  which 
these  illusions  may  carry  them  if  our  coopera- 
tion is  required."  .  .  .  They  "  have  all  the  pre- 
sumption of  ignorance,  but  there  is  reason  to 
expect  that  experience  will  erelong  enlighten 

1  Strachey  to  Nepean,  Nov.  29,  1782,  Stevens  MSS. 

2  John  Adams's  Works,  viii.  88. 


THE  NEGOTIATIONS.  219 

and  improve  them." 1  On  November  23d  he 
wrote  again  that  the  king  was  not  obliged  "  to 
prolong  the  war  in  order  to  sustain  the  ambi- 
tious pretensions  which  the  United  States  may 
form  in  reference  to  the  fishery  or  the  extent  of 
boundaries."  3  When  the  provisional  articles 
were  shown  to  him,  de  Vergennes  wrote  to  Ray- 
neval  that  the  English  had  rather  bought  a 
peace  than  made  one,  and  that  their  concessions 
exceeded  anything  he  had  believed  possible  ; 3 
and  Rayneval  replied  that  the  treaty  seemed  to 
him  like  a  dream.  At  the  time  no  offense  was 
expressed  by  the  French  court,  not  a  word  of 
reproach  but  only  of  congratulation  by  de  Ver- 
gennes. It  was  not  till  more  than  a  fortnight 
afterwards  that  a  rumor,  prevalent  in  England, 
that  the  preliminary  articles  were  a  final  settle- 
ment, and  a  consequent  fear  that  in  such  case 
the  United  States  might  join  England  against 
France,  moved  de  Vergennes  to  write  his  sharp 
letter  of  December  15th  to  Franklin,4  and  urge 
Luzerne  to  inform  Congress  of  the  irregular  ac- 
tion of  the  commissioners.  But  Franklin's  as- 
tute, diplomatic  reply,  pleading  guilty  of  "  neg- 
lecting a  point  of  bienseance,"  and  hoping  that, 

1  Oct.  14,  1782,  Stevens  MSS. 

2  Vergennes  to  Luzerne,  De  Circourt,  iii.  294. 

3  Dec-  4,  1782,  Stevens  MSS. 

4  Sparks,  Franklin,  ix.  449. 


220  JOHN  JAY. 

to  avoid  gratifying  the  English,  "  this  little  mis- 
understanding .  .  .  will  be  kept  a  secret,"  to- 
gether with  the  passing  of  the  temporary  alarm, 
induced  Vergennes  to  countermand  his  letter  to 
Luzerne ;  and  in  token  of  his  good  will  he  prom- 
ised Franklin  a  new  loan  of  six  million  livres. 
It  is  certainly  unnecessary  to  search  for  a  cause 
of  offense  where  de  Vergennes  so  obviously 
found  none. 

January  20,  1783,  the  commissioners  pub- 
lished a  formal  declaration  that  so  long  as  peace 
was  not  concluded  between  France  and  Eng- 
land the  preliminary  articles  did  not  change  the 
relations  between  England  and  the  United 
States.  The  same  day  preliminary  articles  of 
peace  were  signed  at  Paris  between  Great  Brit- 
ain and  France,  and  Great  Britain  and  Spain, 
and  a  cessation  of  arms  was  proclaimed  between 
Great  Britain  and  the  United  States.  From 
that  day  the  provisional  articles  took  effect. 

The  opposition  to  the  terms  of  peace  in  Par- 
liament drove  Shelburne  from  office,  and  in  the 
interim  of  a  month,  which  took  place  between 
his  resignation  and  the  accession  to  power  of 
the  coalition  ministry  on  April  2d,  under  the 
Duke  of  .Portland,  Oswald  was  recalled  and  re- 
placed by  David  Hartley,  with  instructions  to 
secure  amendments  to  the  Provisional  Articles 
and  to  negotiate  a  commercial  treaty.  Hartley 


THE  NEGOTIATIONS.  221 

proposed  articles  in  favor  of  the  royalist  land- 
owners, and  the  Americans  suggested  stipula- 
tions for  the  payment  of  prisoners'  expenses  ; 
while  Franklin  drafted  an  article  protecting 
non-combatants  in  the  event  of  a  future  war. 
But  none  of  these  were  adopted.  In  commerce 
the  Americans  demanded  perfect  reciprocity, 
while  Hartley  was  instructed  by  Fox  1  to  insist 
on  the  admission  of  British  goods  into  America 
while  excluding  American  goods  from  British 
ports,  especially  from  the  West  Indies.  De 
Vergennes,  wrote  Fitzherbert,  April  18th,  de- 
sired to  attract  American  trade  to  France,  and 
Franklin  concurred  with  him,  while  Adams  and 
Jay  would  give  the  preference  to  England.  "  I 
hope,"  wrote  Jay  in  March,  "  we  shall  soon  be  in 
the  full  possession  of  our  country  and  of  peace ; 
and  as  we  expect  to  have  no  further  cause  of  quar- 
rel with  Great  Britain,  we  can  have  no  induce- 
ment to  wish  or  to  do  her  injury ;  on  the  con- 
trary, we  may  become  as  sensible  to  her  future 
good  offices,  as  we  have  been  to  her  former  evil 
ones.  A  little  good  natured  wisdom  often  does 
more  in  politics  than  much  slippery  craft."  2  If 
Shelburne  had  continued  in  office,  a  commercial 
treaty  might  have  been  arranged,  but  with  his 

1  April  10,  1783,  Jay,  Peace  Negotiations,  p.  163. 

2  To  Benjamin  Vaughan,   March  28,   1783,  Jay's  Jay,  ii. 
116. 


222  JOHN  *JA  Y. 

fall  a  reaction  of  feeling  set  in  against  America, 
and  the  ministries  that  followed  one  another, 
with  shifting  personalities  and  indefinite  policies, 
thwarted  the  efforts  of  the  commissioners.  Fox 
doubted  the  authority  of  Congress,  and  by  a 
royal  proclamation  of  July  2d  the  West  India 
carrying  trade  was  confined  to  British  ships. 
Finally,  on  July  27th,  the  commissioners  de- 
cided to  drop  all  commercial  articles  in  our 
definitive  treaty,  and  leave  everything  of  that 
kind  to  a  future  special  treaty.  On  September 
3d,  with  the  exception  of  the  so-called  separate 
article  concerning  the  boundaries  of  Florida, 
which  the  events  of  war  had  made  unnecessary, 
the  Provisional  Articles  were  adopted  as  the 
final  treaty  between  England  and  America,  and 
were  signed  at  Paris  in  the  morning.  A  special 
courier  conveyed  the  news  to  de  Yergennes  at 
Versailles,  whereupon  the  definitive  treaties  be- 
tween France  and  Spain  and  Great  Britain  were 
signed  in  the  presence  of  the  ambassadors  of 
the  mediating  imperial  courts,  an  empty  compli- 
ment in  which  England  refused  to  participate. 

By  the  treaty  the  United  States  gained  more 
than  Congress  had  ventured  to  propose  or  even 
hope  for.  "  The  boundaries  must  have  caused 
astonishment  in  America^"  de  Yergennes  had 
written  in  July  to  Luzerne.  "  No  one  can  have 
flattered  himself  that  the  English  ministers 


THE  NEGOTIATIONS.  223 

would  go  beyond  the  head  waters  of  the  rivers 
falling  into  the  Atlantic."  l  Territory  was  ac- 
quired to  the  extent  of  more  than  twice  what 
was  proposed  by  France  and  Spain  to  England 
in  the  summer  of  1782.  In  spite  of  the  opposi- 
tion of  the  powerful  ally,  on  whose  good  offices 
Congress  relied  to  obtain  any  satisfactory  terms 
at  all,  the  right  to  the  fisheries,  the  navigation 
of  the  Mississippi,  and  an  unimpeded  opening  to 
the  Pacific  were  secured.  To  Jay,  more  than 
to  any  other  of  the  commissioners,  his  contem- 
poraries awarded  the  credit  for  this  diplomatic 
triumph.  "  The  New  England  people,"  wrote 
Hamilton,  "talk  of  making  you  an  annual  fish 
offering  as  an  acknowledgment  of  your  exertions 
for  the  participation  of  the  fisheries."  "  The 
principal  merit  of  the  negotiation  was  Mr.  Jay's," 
said  John  Adams,  whose  praise  was  seldom  ex- 
cessive : 2  and  at  the  time  he  wrote :  "  A  man  and 
his  office  were  never  better  united  than  Mr.  Jay 
and  the  commission  for  peace.  Had  he  been 
detained  in  Madrid,  as  I  was  in  Holland,  and 
all  left  to  Franklin  as  was  wished,  all  would 
have  been  lost."  3  Fitzherbert,  when  Lord  St. 
Helens,  in  1838,  added  his  testimony  from  the 

1  July  21,  1783,  Stevens  MSS. 

2  John  Adams  to  John  Jay,  Nov.  24,  1800,  Jay's  Jay,  i.  418. 

3  John  Adams  to  Jonathan  Jackson,   Nov.  17,  1782,  John 
Adams's  Works,  ix.  516. 


224  JOHN  JAY. 

English  point  of  view,  that  "  it  was  not  only 
chiefly  but  solely  through  his  [Jay's]  means 
that  the  negotiations  of  that  period,  between 
England  and  the  United  States,  were  brought 
to  a  successful  conclusion."  l  Nor  is  it  without 
significance  that  de  Vergennes  should  have  com- 
plained of  "  characters  so  little  manageable  as 
those  of  Jay  and  Adams."  2  Further,  it  is  worth 
noting  that,  though  Jay  had  successfully  opposed 
the  policy  of  France,  a  Frenchman  could  appre- 
ciate his  motives :  "I  do  not  credit  him  with 
gratitude  to  us,"  wrote  Luzerne  to  de  Vergennes, 
"  but  he  is  incapable  of  preferring  England  to 
us ;  he  glories  in  being  independent,  and  his  de- 
sire to  prove  his  attachment  to  his  country  some- 
times makes  him  unjust.  But  we  need  not  fear 
from  him  any  premeditated  act  prejudicial  to 
the  alliance."  3 

In  the  autumn  Mr.  Jay's  family  took  a  house 
at  Chaillot,  near  Passy,  on  the  road  to  Paris,  and 
there  Mrs.  Jay  and  the  children  spent  several 
months,  while  Jay  himself  went  to  England  to 
try  the  waters  of  Bath  for  his  health,  having 
first  obtained  from  Congress  special  leave  of  ab- 
sence. His  wife  wrote :  "  Everybody  that  sees 
the  house  is  surprised  it  has  remained  so  long 

1  Lord  St.  Helens  to  Judge  William  Jay,  July  29,  1838. 

2  Vergennes  to  Luzerne,  Dec.  24,  1783,  Stevens  MSS. 

3  Luzerne  to  Vergennes,  Sept.  26.  1783,  Stevens  MSS. 


THE  NEGOTIATIONS.  225 

unoccupied.  It  is  so  gay,  so  lively,  that  I  am 
sure  you  '11  be  pleased.  Yesterday  the  windows 
were  open  in  my  cabinet  while  I  was  dressing, 
and  it  was  even  then  too  warm.  Dr.  Franklin 
and  his  grandsons,  and  Mr.  and  Mrs.  Coxe,  and 
the  Miss  Walpoles  drank  tea  with  me,  likewise, 
this  evening,  and  they  all  approve  of  your  choice. 
As  the  sky  is  very  clear  and  the  moon  shines 
very  bright,  we  were  tempted  to  walk  from  the 
saloon  upon  the  terrace,  and  while  the  company 
were  admiring  the  situation,  my  imagination  was 
retracing  the  pleasing  evenings  that  you  and  I 
have  passed  together  in  contemplating  the  mild 
and  gentle  rays  of  the  moon."  1  Dr.  Franklin 
was  a  near  neighbor,  and  sometimes  enjoyed  an 
old  friend's  privilege  of  making  fun  of  pretty 
Mrs.  Jay's  devotion  to  her  husband.  "  Dr. 
Franklin  charges  me  to  present  you  his  compli- 
ments," she  says,  "  whenever  I  write  to  you,  but 
forbids  my  telling  you  how  much  pains  he  takes 
to  excite  my  jealousy  at  your  stay.  The  other 
evening,  at  Passy,  he  produced  several  pieces 
of  steel ;  the  one  he  supposed  you,  at  Chaillot, 
which  being  placed  near  another  piece,  which 
was  to  represent  me,  it  was  attracted  by  that  and 
presently  united ;  but  when  drawn  off  from  me, 
and  near  another  piece,  which  the  Doctor  called 
an  English  lady,  behold,  the  same  effect !  The 

1  From  Mrs.  Jay.  Nov.  6,  1783. 


226  JOHN  JAY. 

company  enjoyed  it  much,  and  urged  me  to  re- 
venge ;  but  all  could  not  shake  my  faith  in  my 
beloved  friend." l  "  It  gives  me  pleasure,"  was 
Jay's  reply  from  Bath,  "  to  hear  that  the  Doctor 
is  in  such  good  spirits.  Though  his  magnets 
love  society,  they  are  nevertheless  true  to  the 
pole,  and  in  that  I  hope  to  resemble  them."  2 

While  Mrs.  Jay  was  reading  "  Evelina,"  which 
Miss  Walpole  lent  to  her,  watching  the  ascent 
of  a  "  globe  of  Montgolfier's,"  exchanging  re- 
partees with  Dr.  Franklin  and  having  the  chil- 
dren inoculated,  Jay  was  at  Bath,  having  stayed 
only  a  few  days  in  London,  and  making  but  one 
short  trip  to  Bristol  to  attend  to  a  bequest  in 
the  will  of  his  cousin  Peloquin.  In  London  he 
found  many  Americans,  and  was  most  scrupu- 
lous in  adjusting  his  behavior  to  them  accord- 
ing to  their  patriotism.  "  Having  been  very 
well  assured  that  the  conduct  of  Judge  Ludlow, 
Mr.  Watts,  H.  White,  and  P.  v.  Schaack  had 
been  perfectly  unexceptionable,"  he  wrote  to 
Egbert  Benson,  "  and  that  they  had  not  asso- 
ciated with  the  abominable  Tory  Club  in  Lon- 
don (which  filled  the  public  papers  with  the 
most  infamous  lies  against  us),  I  received  and 
returned  their  visits.  Vadill  also  made  me  a 

1  From  Mrs.  Jay,  Nov.  18, 1783,  Queens  of  American  Society, 
p.  67. 

2  Ibid. 


THE  NEGOTIATIONS.  227 

visit,  but  I  never  returned  it.  Reports  of  the 
cruelties  practiced  by  my  old  friend  Jas.  De 
Lancey  of  W.  Chester  News  also  kept  us  asun- 
der. I  wish  these  reports  may  prove  as  ground- 
less as  he  says  they  are.  He  was  an  honest 

t/  «/ 

friend  to  me,  and  I  sincerely  lament  the  circum- 
stances which  prevent  my  taking  him  by  the 
hand  as  cordially  as  ever.  I  have  not  seen  any 
of  Gen.  De  Lancey's  family.  I  once  met  Billy 
Bayaud  on  the  street,  but  we  passed  each  other 
as  perfect  strangers."  l  At  Bath  he  saw  much 
of  the  well  -  known  Countess  of  Huntington. 
44  She  inquired  about  you  in  a  very  friendly 
manner,  and  is  an  enthusiast  for  America,"  he 
tells  his  wife.  "  Her  heart  is  much  set  on  the 
conversion  of  our  Indians  ;  she  will  find  it  a 
difficult  task,  but  her  wishes  are  laudable, 
though  perhaps  too  sanguine." 2  The  waters, 
aided  by  rhubarb  and  much  walking,  cured  his 
dysentery  and  sore  throat,  and  he  returned  to 
Paris  in  January. 

He  refused  repeated  offers  of  an  appointment 
to  London  or  Paris,  urging  the  propriety  of 
making  Adams  the  first  minister  from  America 
to  England,  and  declaring  his  intention  to  be- 
come and  remain  a  private  citizen  and  a  lawyer. 
After  a  long  and  unnecessary  delay  caused  by 

1  To  E.  Benson,  Dec.  15,  1783,  Jay  MSS. 

2  Dec.  5,  1783,  Jay  MSS. 


228  JOHN  JAY. 

dilatoriness  of  his  secretary  Carmichael  in  set- 
tling his  accounts  with  Barclay,  the  agent  of 
Congress,  he  at  length  left  Paris  with  his  family 
on  May  16th,  for  Dover,  where  he  took  ship  for 
New  York.  "  Your  public  and  private  charac- 
ter," wrote  David  Hartley  in  a  farewell  letter, 
"  has  impressed  me  with  unalterable  esteem  for 
you  as  a  public  and  private  friend ;  ...  if  I 
should  not  have  the  good  fortune  to  see  you 
again,  I  hope  you  will  always  think  of  me  as 
eternally  and  unalterably  attached  to  the  prin- 
ciples of  renewing  and  establishing  the  most 
intimate  connection  of  amity  and  alliance  be- 
tween our  two  countries."  John  Adams  wrote 
to  Barclay :  "  Our  worthy  friend,  Mr.  Jay,  re- 
turns to  his  country  like  a  bee  to  his  hive,  with 
both  legs  loaded  with  merit  and  honor."  1 
i  To  Thos.  Barclay,  May  24, 1784,  Hist.  Mag.,  1869,  p.  358. 


CHAPTER  IX. 

SECRETARY  FOR  FOREIGN  AFFAIRS. 

1784-1789. 

ON  July  24,  1784,  Jay  was  once  again  in 
New  York,  after  an  absence  from  the  country  of 
some  five  years.  He  was  welcomed  by  the  city 
fathers  with  an  address  and  the  freedom  of  the 
city  in  a  gold  box,  "  as  a  pledge  of  our  affection 
and  of  our  sincere  wishes  for  your  happiness." 
He  had  intended  to  "  become  a  simple  citizen," 
as  he  wrote  from  France  to  Van  Schaack,  and 
to  take  up  again  the  practice  of  his  profession ; 
but  on  landing  he  found  that  Congress  had  two 
months  before  appointed  him  Secretary  for  For- 
eign Affairs.  This  office  had  been  established 
in  1781,  and  had  been  occupied  by  Chancellor 
Livingston  till  June,  1783,  when  he  resigned, 
according  to  Luzerne,1  on  account  of  the  insuf- 
ficient salary.  It  then  remained  vacant  till  the 
following  May,  when  Congress,  hearing  from 
Franklin  of  Jay's  expected  return,  elected  him 
the  same  day  on  the  motion  of  Elbridge  Gerry. 
For  some  months  Jay  withheld  his  acceptance, 
1  Luzerne  to  Vergennes,  May  19,  1782,  Stevens  MSS. 


230  JOHN  JAY. 

as  he  was  unwilling,  for  reasons  of  private  busi- 
ness, to  be  detained  at  Trenton,  where  Congress 
had  been  in  session  and  was  to  reassemble  in 
September,  and  also  because  he  was  reluctant 
to  assume  such  responsibility  without  the  privi- 
lege of  selecting  his  own  clerks,  a  power  which 
Congress  had  heretofore  reserved  to  itself. 
Meantime  he  was  elected  a  delegate  to  Congress 
by  the  state  legislature  ;  but  on  December  21st, 
Congress  having  decided  to  adjourn  to  New 
York,  and  yielding  in  the  matter  of  the  appoint- 
ments of  his  subordinates,  Jay  accepted  the  sec- 
retaryship, and  resigned  his  seat  on  the  floor. 

Almost  immediately  afterwards  he  was  tempted 
to  become  a  candidate  for  governor ;  but  he  re- 
fused to  desert  the  federal  service,  saying :  "  A 
servant  should  not  leave  a  good  old  master  for 
the  sake  of  a  little  more  pay  or  a  prettier  liv- 
ery.'* To  the  more  conservative  Whigs,  who 
were  soon  to  be  known  as  Federalists,  the  offi- 
cial conduct  of  Governor  Clinton  had  become 
intensely  objectionable,  partly  on  account  of  his 
appointments  to  office  of  personal  adherents, 
partly  because  he  was  the  most  vehement  par- 
tisan of  those  harsh  laws  against  the  royalists, 
which  Jay  and  Hamilton  regarded  as  both  un- 
just and  impolitic.  General  Schuyler,  who  with 
Livingston  was  also  named  as  an  anti  -  Clin- 
ton candidate,  urged  Jay  again  and  again,  with 


SECRETARY  FOR  FOREIGN  AFFAIRS.      231 

singular  self  -  effacement,  to  reconsider  his  re- 
fusal, since  he  was  "the  only  man  capable  of 
stemming  the  torrent  of  evil,  which  with  accel- 
erating rapidity  was  rolling  to  the  goal  of  de- 
basement." But  to  Jay  the  occasion  did  not 
seem  sufficiently  critical,  and  even  this  fervent 
and  florid  appeal  was  in  vain. 

While  Livingston  had  held  the  place,  the 
Secretary  for  Foreign  Affairs  had  been  little 
more  than  a  mere  clerk  of  Congress,  and  Jay 
now  applied  himself  to  the  reorganization  of  the 
department,  having  the  papers  filed  for  the  first 
time  in  a  methodical  manner,  and  asserting  and 
maintaining  on  every  occasion  the  dignity  of  the 
office.  He  protested  earnestly  and  successfully 
against  the  impropriety  of  permitting  foreign 
correspondence  pertaining  to  his  department  to 
be  communicated  to  Congress  before  being  sub- 
mitted to  his  scrutiny.1  He  made  frequent  use 
of  his  privilege  to  appear  on  the  floor  of  Con- 
gress, and  to  speak  on  questions  of  foreign 
policy ;  and  Congress  constantly  asked  for  and 
deferred  to  his  advice.  In  a  short  time  the  se- 
cretaryship thus  became  the  first  office  in  conse- 
quence under  the  Confederation ;  for  through  it 
was  transacted  the  correspondence  between  the 
Federal  Government  and  the  several  States  as 
well  as  that  with  foreign  nations.  "  The  polit- 

1  Madison's  Works,  i.  142. 


232  JOHN  JAY. 

ical  importance  of  Mr.  Jay  increases  daily," 
wrote  Otto  to  de  Vergennes  in  January,  1786. 
"  Congress  seems  to  me  to  be  guided  only  by  his 
directions,  and  it  is  as  difficult  to  obtain  any- 
thing without  the  cooperation  of  that  minister 
as  to  bring  about  the  rejection  of  a  measure  pro- 
posed by  him."  l  Yet  all  this  time  the  accom- 
modations provided  for  the  foreign  office  were 
miserably  insufficient.  "  As  late  as  1788  there 
were,  .  .  .  besides  the  secretary  and  his  assist- 
ants, only  two  clerks,  or  just  enough,  as  may  be 
inferred  from  a  report  of  this  date,  for  one  of 
them  to  be  in  the  office  while  the  other  went  to 
luncheon.  The  quarters  of  the  office,  the  report 
tells  us,  consisted  of  only  two  rooms,  one  of 
them  being  used  as  a  parlor,  and  the  other  for 
the  workshop."  2 

In  the  summer  of  1785,  the  court  of  Spain 
appointed  practically  a  resident  minister  to  the 
United  States,  though  under  the  modest  title 
only  of  encargado  de  negocios,  Don  Diego  de 
GardoquiJ  with  a  view  to  settle  the  controversy 
about  the  navigation  of  the  Mississippi  which 
had  been  guaranteed  to  the  United  States  by  the 
treaty  of  peace  ;  also  to  arrange  a  commercial 
treaty.  The  negotiations  were  at  once  intrusted 

1  Bancroft,  Const.  Hist,  pp.  479,  480. 

2  J.  F.  Jameson,  Essays  on  the  Const.  Hist,  of  the  U.  S ,  p. 
165. 


SECRETARY  FOR  FOREIGN  AFFAIRS.       233 

to  Jay  (whom  it  had  been  previously  decided  to 
send  to  Spain  for  that  purpose),  with  full  power  ; 
which,  however,  was  limited  later  by  the  instruc- 
tion "  to  stipulate  the  right  of  the  United  States 
to  their  territorial  bounds  and  the  free  navigation 
of  the  Mississippi  ...  as  established  in  their 
treaties  with  Great  Britain."  l  In  1783  Count 
Florida  Blanca,  in  conversation  with  Lafayette, 
had  seemed  to  yield  the  Spanish  claims  to  the 
Western  Territory,  to  which,  indeed,  Spain  had 
no  valid  title ;  but  Gardoqui  now  asserted  that 
this  understanding  was  a  mistake.  "  In  a  word,'* 
wrote  Jay  to  Lafayette,  "  they  do  not  mean  to 
be  restricted  to  the  limits  established  between 
Britain  and  us."  2  Gardoqui  was  equally  inflex- 
ible against  yielding  the  free  navigation  of  the 
Mississippi.  But  he  was  willing  to  conclude  a 
commercial  treaty  on  liberal  terms,  a  matter  of 
first  importance  to  the  Northern  States,  where, 
especially  in  New  England,  grave  commercial 
distress  existed,  for  which  such  a  treaty  was 
thought  to  be  the  only  remedy. 

Jay  was  finally  convinced  that  the  crisis 
would  justify  a  surrender  of  the  navigation  for 
a  period  of  twenty-five  or  thirty  years.  August 
3,  1786,  in  a  speech  before  Congress,  he  stated 
his  reasons  concisely:  first,  because  no  treaty 

1  Secret  Journals,  iii.  586. 

2  June  16,  1786,  Jay's  Jay,  11^187. 


234  JOHN  JAY. 

can  be  made  unless  that  question  is  settled ; 
secondly,  because  the  navigation  of  the  Missis- 
sippi is  not  now  important  or  likely  to  be  so  for 
many  years ;  thirdly,  because,  as  we  are  not  pre- 
pared for  war,  Spain  can  exclude  us  from  that 
navigation  indefinitely.  "  Why,  therefore,"  he 
concluded,  "  should  we  not  (for  a  valuable  con- 
sideration, too)  consent  to  forbear  to  use  what 
we  know  is  not  in  our  power  to  use  ?  "  l  These 
reasons  were  logical  but  inconclusive,  since  they 
disregarded  the  one  decisive  fact  that  the  South- 
west was  becoming  rapidly  populated  by  colo- 
nists who  strongly  insisted  on  the  free  naviga- 
tion of  their  great  river.  "The  act  which 
abandons  it,"  wrote  Jefferson,  "  is  an  act  of 
separation  between  the  eastern  and  the  western 
country."  2  Jay,  doubtless,  was  not  unmindful 
of  the  instructions,  which  Congress  had  sent  to 
him  in  Spain  only  four  years  before,  on  the 
in  Dtion  of  the  Southern  delegates :  to  resign 
absolutely  all  claim  to  the  Mississippi  south  of 
the  thirty-first  parallel.  It  was,  indeed,  due 
wholly  to  the  sagacity  which  had  been  then 
shown  by  him  that  the  United  States  still  pos- 
sessed any  claims  to  the  river  to  arbitrate. 
Now,  however,  the  political  situation  had 
changed  completely  with  the  march  of  events ; 

1  Secret  Journals,  iv.  45,  53. 

2  To  Madison,  Jan.  30,  1787,  Jefferson's  Works,  ii.  87. 


SECRETARY  FOR  FOREIGN  AFFAIRS.      235 

"  while  Congress  was  discussing  the  points  of 
the  treaty  a  nation  was  created,"  1  and  a  nation 
which  could  not  be  disregarded.  Accordingly, 
on  August  28th,  every  Southern  delegate  save 
one  voted  to  revoke  the  secretary's  commission 
to  negotiate.  The  motion  was  defeated,  and  the 
next  day,  by  vote  of  seven  States  to  five,  Jay 
was  again  given  unlimited  power.  "  It  rests 
wholly  with  Jay,"  wrote  Madison  to  Randolph, 
"  how  far  he  will  proceed  with  Gardoqui,  and 
how  far  he  will  communicate  with  Congress."  2 

The  nfcxt  month  Jay  reported  that  he  had 
arranged  an  article  saving  the  right  of  naviga- 
tion, while  suspending  its  use  for  the  period  of 
the  treaty,  but  that  the  negotiation  was  "  dila- 
tory, unpleasant,  and  unpromising."3  Finally 
Congress  revoked  Jay's  powers,  in  view  of  the 
change  of  government  about  to  take  place  by 
reason  of  the  adoption  of  the  new  Constitution. 
Jay's  suggestion,  discussed  as  it  was  only  in 
secret  session,  and  thought  by  the  Southern 
statesmen  to  sacrifice  the  rights  of  the  South 
to  <Tie  convenience  of  the  North,  was  the  chief 
cause  of  the  opposition  of  North  Carolina  and 
Virginia  to  the  ratification  of  the  Constitution ; 
and  that  it  was  an  error  of  judgment  was  frankly 

1  Lyman,  Diplomacy  of  the  U.  S.,  i.  285. 

2  March  11,  1787,  Madison  Papers,  ii.  622. 
8  Jay  to  Gardoqui,  Oct.  17,  1788,  Jay  MSS. 


236  JOHN  JAY. 

admitted  by  Jay  himself  in  1788.1  But  he  was 
actuated  by  national,  not  sectional  motives,  in 
advising  what  he  knew  to  be  a  choice  of  evils ; 
and  in  the  words  of  one  of  his  severest  critics : 
"  In  the  game  of  applied  politics,  often  a  cal- 
culus of  probabilities  among  contingent  events 
and  imponderable  forces,  a  statesman  may  some- 
times show  more  wisdom  in  being  fortuitously 
wrong  as  the  event  turns  out,  than  in  being  for- 
tuitously right  according  to  a  drift  and  posture 
of  events  which  could  not  be  foreseen."  2 

For  some  years  the  claims  of  Bea«marchais 
to  compensation,  now  urged  by  the  agents  of 
France,  were  debated  in  Congress,  a  discussion 
which  was  unfortunately  destined  to  continue  a 
long  while  yet  before  the  end  could  be  achieved. 
Jay  had  little  to  do  with  the  matter,  but  his 
views  were  positive.  "  There  can  be,"  he  wrote 
to  Jefferson  in  Paris,  "  but  little  clashing  of 
interests  between  us  and  France.  .  .  .  These 
engagements,  however,  give  me  much  concern. 
Every  principle  of  honour,  justice,  and  interest 
calls  upon  us  for  good  faith  and  punctuality, 
and  yet  we  are  unhappily  so  circumstanced,  that 
the  moneys  necessary  for  the  purpose  are  not 
provided."  Indeed,  though  his  political  oppo- 
nents found  it  convenient  to  denounce  Jay  as 

1  Secret  Journals,  iv.  452. 

2  James  C.  Welling,  The  Land  Politics  of  the  U.  S.,  p.  19. 


SECRETARY  FOR  FOREIGN  AFFAIRS.       237 

unfriendly  to  France,  his  official  conduct  regard- 
ing her  was  that  of  a  friend.  In  reporting  on 
the  complaints  by  French  merchants  of  laws  of 
Massachusetts  and  New  Hampshire  discriminat- 
ing against  French  vessels,  he  urged  that  Con- 
gress should  recommend  the  repeal  of  such  acts. 
"  The  French,"  he  said,  "  have  extended  liberty 
of  commerce  to  the  United  States  beyond  what 
they  were  bound  to  do  by  the  treaty,  and  it 
certainly  would  not  be  kind  to  repay  their 
friendly  relaxation "  by  unnecessary  restric- 
tions.1 "But  the  commerce  of  the  country,"  he 
added,  "  must  suffer  from  partial  and  discordant 
regulations  .  .  .  until  it  is  under  one  direction." 
Since  1782,  a  convention  defining  the  rights 
and  duties  of  consuls  had  also  been  in  negotia- 
tion with  France,  but  it  came  to  nothing,  though 
Jay  clearly  saw  its  necessity.  "  The  foreign 
consuls  here,"  he  said,  "  have  no  other  authority 
than  what  they  may  derive  from  the  laws  of 
nations,  and  the  Acts  of  particular  States.  The 
propriety  of  these  Acts  appears  to  be  question- 
able, especially  as  national  objects  should  be 
regulated  by  national  laws." 

Jay  was  also  anxious  to  effect  a  commercial 
treaty  with  France  on  the  basis  of  perfect  reci- 
procity.    Besides  urging  his  views  on  Jefferson, 
the  minister  to  France,  he  wrote  to  Lafayette 
1  DipL  Corr.,  1783-89,  i.  176. 


238  JOHN  JAY. 

very  freely :  "  Without  any  attempt  to  dress  my 
ideas  d  la  mode  de  Paris  —  have  we  any  reason 
to  flatter  ourselves  that  you  will  encourage  us 
to  drink  your  wines  by  permitting  your  islands 
to  eat  our  bread  ?  .  .  .  Commercial  privileges 
granted  to  us  by  France  at  this  season  of  Brit- 
ish ill  humour  would  be  particularly  grateful, 
and  afford  conclusive  evidence  against  its  being 
the  plan  of  the  two  kingdoms  to  restrict  our 
trade  to  the  islands."1  "Toleration  in  com- 
merce," he  wrote  a  few  years  later  to  the  same 
friend  of  America,  "  like  toleration  in  religion, 
gains  ground,  it  is  true ;  but  I  am  not  sanguine 
that  either  will  soon  take  place  to  their  due 
extent."2  To  Jay,  indeed,  the  benefit  of  free 
trade  seemed  axiomatic.  "  How  freely  would  it 
redound  to  the  happiness  of  all  civilized  people," 
he  exclaimed  in  a  letter  to  Lord  Lansdowne, 
"  were  they  to  treat  each  other  like  fellow-citi- 
zens !  Each  nation  governing  itself  as  it 
pleases,  but  each  admitting  others  to  a  perfect 
freedom  of  commerce.  The  blessings  resulting 
from  the  climate  and  local  advantages  of  one 
country  would  then  become  common  to  all,  and 
the  bounties  of  nature  and  conveniences  of  art 
pass  from  nation  to  nation  without  being  im- 
peded by  the  selfish  monopolies  and  restrictions 

1  To  Marquis  de  la  Fayette,  Jan.  19,  1785,  Jay  MSS. 

2  To  Marquis  de  la  Fayette,  April  26,  1788,  Jay  MSS. 


SECRETARY  FOR  FOREIGN  AFFAIRS.      239 

with  which  narrow  policy  opposes  the  extension 
of  divine  benevolence."  l 

In  the  autumn  of  1785  the  Algerines  declared 
war,  or,  rather,  resumed  their  piracies,  on  the 
cessation  of  tribute.  The  war  Jay  did  not  deem 
a  great  evil,  but  rather  hoped  that  it  might  be- 
come "  a  nursery  for  seamen,  and  lay  the  founda- 
tion of  a  respectable  navy."  2  He  recommended 
at  once,  but  in  vain,  the  organization  of  a  board 
of  admiralty,  the  building  of  five  forty-ton  ships, 
and  the  arming  of  American  traders  in  the  Med- 
iterranean at  public  expense.  In  1787  he  wrote 
to  Lafayette :  "  The  great  question,  I  think,  is 
whether  we  shall  wage  war  or  pay  tribute  ?  I 
for  my  part  prefer  war." 3  But  he  only  suc- 
ceeded in  persuading  Congress  to  allow  Jeffer- 
son, in  1788,  to  provide  for  the  subsistence  of 
American  captives  at  Algiers  out  of  the  fund 
set  apart  for  their  redemption.4 

Much  complaint  and  public  clamor  arose  from 
the  retention  by  Great  Britain  of  the  north- 
western posts,  in  violation  of  the  seventh  article 
of  the  treaty  of  peace.  But  when  John  Adams, 
the  American  minister  at  London,  formally  pro- 
tested, the  English  government  retorted  that 

1  April  20,  1786,  Jay  MSS. 

2  To  the  President  of  Congress,  Oct.  13,  1785. 

3  Nov.  16,  1787,  Jay  MSS. 

4  To  the  President  of  Congress,  Sept.  12,  1788,  Jay  MSS. 


240  JOHN  JAY. 

the  fourth  article,  securing  every  facility  for  the 
collection  of  debts  due  to  Englishmen,  was  vio- 
lated with  equal  openness  by  the  United  States. 
The  correspondence  was  referred  to  Jay.  "  The 
result  of  my  inquiries  into  the  conduct  of  the 
States  relative  to  the  treaty,"  he  wrote  to  Adams, 
"  is,  that  there  has  not  been  a  single  day  since  it 
took  effect  on  which  it  has  not  been  violated  in 
America  by  one  or  other  of  the  States ; " 1  and 
these  conclusions  were,  with  a  candor  rare  in  a 
public  officer,  embodied  with  appropriate  recom- 
mendations in  his  report  to  Congress  on  Octo- 
ber 13th.  "  The  amount  of  the  report,  which  is 
an  able  one,"  said  Madison  in  a  letter  to  Jeffer- 
son, "  is,  that  the  treaty  should  be  put  in  force 
as  a  law,  and  the  exposition  of  it  left,  like  that 
of  other  laws,  to  the  ordinary  tribunals."  2  Con- 
gress passed  resolutions  accordingly,  and  ordered 
them  transmitted  to  the  several  States,  together 
with  a  circular  letter  written  by  Jay,  urging  the 
repeal  of  all  laws  in  contravention  of  the  treaty ; 
but  the  States  as  usual  paid  little  heed. 

Besides  these  more  important  transactions 
there  was  much  to  occupy  the  time  of  the  Secre- 
tary for  Foreign  Affairs.  There  were  reports 
to  make  on  individual  claims  against  the  govern- 
ment urged  by  M.  Otto,  the  representative  of 

1  To  John  Adams,  Nov.  1,  1786,  Jay's  Jay,  ii.  191. 

2  Madison  Papers,  ii.  294. 


SECRETARY  FOR  FOREIGN  AFFAIRS.       241 

France,  or  by  Mr.  Temple,  who  had  been  re- 
ceived as  British  consul,  on  Jay's  advice,  as  a 
matter  of  comity.  On  the  recommendation  of 
Jay  a  consul  was  appointed  at  Canton,1  with 
which  port  a  promising  trade  was  already  be- 
gun. For  reasons  that  do  not  appear,  but  ap- 
parently on  Jay's  suggestion  that  there  should 
be  some  official  supervision  of  the  mails,  Con- 
gress by  a  secret  act,  September  7, 1785,  author- 
ized him  in  his  discretion  to  open  letters  in  the 
post-office ; 2  a  singular  grant  of  arbitrary  power 
which  he  is  said  never  to  have  exercised. 

Then,  as  now,  heads  of  departments  were  be- 
set by  applicants  for  office  or  favor ;  but  in 
granting  these  Jay  was  unusually  punctilious. 
He  refused  curtly  his  brother  Frederick's  re- 
quest to  ask  Gardoqui  to  recommend  him  as  a 
reputable  merchant  to  sell  a  damaged  cargo. 
He  even  declined  to  serve  John  Adams,  by  rec- 
ommending Adams's  son-in-law,  Colonel  Smith, 
to  succeed  him  at  London.  "  In  other  coun- 
tries," was  Jay's  answer,  "  it  is  not  unusual  to 
consult  .  .  .  the  opinion  of  the  Secretary  for 
Foreign  Affairs  respecting  the  officers  to  be  ap- 
pointed in  that  department.  .  .  .  But  the  case 
is  different  here.  Although  Congress  commonly 
refer  the  propriety  of  measures  to  my  considera- 

1  January,  1786. 

2  From  Secretary  Thompson,  Sept.  8,  1785,  Jay  MSS. 


242  JOHN  JAY. 

tion,  yet  they  uniformly  forbear  to  consult  me 
about  the  persons  to  be  appointed  to  any  place 
or  office  however  important.  .  .  .  These  consid- 
erations have  led  me  to  make  a  rule  to  keep 
within  the  limits  of  my  department,  and  not  to 
interfere  or  to  endeavour  to  influence  any  elec- 
tions or  appointments  in  Congress."  1 

Jay  had  other  business,  not  connected  with 
the  secretaryship.  In  1785  he  was  appointed 
by  the  State  of  New  York  one  of  its  agents  to 
determine  its  controversy  with  Massachusetts 
concerning  boundaries  ;  but  he  resigned  early 
the  next  year.  When  a  committee  was  ap- 
pointed by  Congress  on  a  plan  for  the  govern- 
ment of  future  territories,  he  was  requested  to 
attend  and  advise.  "  Shall  the  government,'* 
he  wrote  to  James  Monroe,  "  be  upon  colonial 
principles,  under  a  governor,  council,  and  judges 
of  the  United  States,  ...  and  then  admitted  to 
a  vote  in  Congress  with  the  common  right  of 
the  other  States  ;  or  shall  they  be  left  to  them- 
selves until  that  event  ?  "  2 

Under  an  act  of  New  York  for  the  gradual 
manumission  of  slaves,  a  society  was  formed  for 
promoting  it  and  protecting  such  as  were  freed. 
In  1786  Jay  was  appointed  by  the  society  one 
of  the  trustees  for  receiving  donations,  and  two 

1  To  Col.  W.  S.  Smith,  July  20,  1787,  Jay  MSS. 

2  April  20,  1786,  Jay  MSS. 


SECRETARY  FOR  FOREIGN  AFFAIRS.      243 

years  later  was  elected  to  its  presidency  which 
he  retained  till,  being  chief  justice,  he  thought 
proper  to  resign. 

Always  a  devout  Episcopalian,  he  was  a  dele- 
gate from  New  York  to  the  General  Convention 
of  the  Church,  which  met  at  Philadelphia  in 
June,  1786.  There  he  drafted  the  letter  sent  to 
the  English  bishops,  requesting  ordination  for 
the  American  candidates,  while  defending  the 
alterations  made  in  the  liturgy.  On  its  dissolu- 
tion the  Convention  honored  him  with  a  special 
vote  of  thanks.1 

The  Secretary  for  Foreign  Affairs  was  ex- 
pected to  perform  certain  social  duties.  On 
returning  from  Europe  he  took  a  house  in  New 
York  for  a  year,  and  began  building  one  for 
himself  at  No.  8  Broadway,  which  was  finished 
the  following  spring.  Here  was  naturally  the 
centre  of  official  entertainment  so  long  as  New 
York  remained  the  capital.  In  Mrs.  Jay's 
"  Dinner  and  Supper  List  for  1787  and  1788," 
appear  the  names  of  most  of  the  well-known 
colonial  families,  and  of  the  most  noted  states- 
men who  were  brought  to  New  York  by  the 
Congress  under  the  Confederation  and  the  first 
Congress  under  the  Constitution.  "Mrs.  Jay 
gives  a  dinner  almost  every  week,"  wrote  Mrs. 
Smith  to  her  mother,  Mrs.  John  Adams,  "  be- 
1  Jay  MSS. 


244  JOHN  JAY. 

sides  one  to  the  corps  diplomatique  on  Tuesday 
evening."  l  On  May  20,  1788,  she  wrote  again  : 
"  Yesterday  we  dined  at  Mrs.  Jay's,  in  company 
with  the  whole  corps  diplomatique.  Mr.  Jay  is 
a  most  pleasing  man,  plain  in  his  manners,  but 
kind,  affectionate,  and  attentive  ;  benevolence  is 
stamped  on  every  feature.  Mrs.  Jay  dresses 
showily,  but  is  very  pleasing  on  a  first  acquaint- 
ance. The  dinner  was  a  la  Frangaise,  and  ex- 
hibited more  European  taste  than  I  expected  to 
find."  2  It  was  doubtless  in  a  simpler  style  that 
Mr.  and  Mrs.  Adams  were  entertained  there  in 
the  spring  of  1789,  for  Mrs.  Adams,  to  judge 
from  her  letter  thanking  Mrs.  Jay  for  her  hospi- 
tality, was  treated  quite  as  one  of  the  family. 
"  Our  mush  and  lemon  brandy  were  of  great 
service  to  us,  and  we  never  failed  to  toast  the 
donor,  whilst  our  hearts  were  warmed  by  the 
recollection.  I  hope,  my  dear  Madam,  that  your 
health  is  better  than  when  I  left  you,  and  this 
not  for  your  sake  only,  but  for  that  of  your 
worthy  partner,  who  I  am  sure  sympathized  so 
much  with  you,  that  he  never  really  breakfasted 
the  whole  time  I  was  with  you."  3 

By  the  year  1788  the  wheels  of  government 
had  fairly  stopped,  the  Confederation  was  little 

1  Queens  of  American  Society,  p.  75. 

2  Ibid. 

2  Feb.  1779,  Jay  MSS. 


SECRETARY  FOR  FOREIGN  AFFAIRS.        245 

more  than  a  name,  and  the  duties  of  the  Secre- 
tary for  Foreign  Affairs  consisted  mainly  in  prov- 
ing to  Congress  the  futility  or  absurdity  of  any 
action.  For  this  reason  the  negotiations  with 
Spain  were  summarily  closed;  the  treaty  with 
England  was  incapable  of  enforcement;  and 
when  a  loan  was  proposed,  necessary  as  money 
was,  he  felt  obliged  to  say:  "Congress  can  make 
no  certain  dependence  on  the  States  for  any  spe- 
cific sums,  to  be  required  and  paid  at  any  given 
periods,  and  consequently  is  not  in  a  capacity 
safely  to  pledge  its  honor  and  faith  as  a  bor- 
rower." l  It  was  his  own  experience  which  he 
embodied  in  his  analysis  of  the  weakness  of  the 
government  in  his  "  Address  to  the  People  of  the 
State."  "They  [the  Congress],  may  make  war, 
but  are  not  empowered  to  raise  men  or  money  to 
carry  it  on.  They  may  make  peace,  but  without 
power  to  see  the  terms  of  it  observed.  They  may 
form  alliances,  but  without  ability  to  comply  with 
the  stipulations  on  their  part.  They  may  enter 
into  treaties  of  commerce,  but  without  power  to 
enforce  them  at  home  or  abroad.  They  may  bor- 
row money,  but  without  having  the  means  of  re- 
payment. They  may  partly  regulate  commerce, 
but  without  authority  to  enforce  their  ordi- 
nances. They  may  appoint  ministers  and  other 
officers  of  trust,  but  without  power  to  try  or 

1  Lamb,  Hist,  of  New  York,  ii.  292. 


246  JOHN  JAY. 

punish  them  for  misdemeanors.  They  may  re- 
solve, but  cannot  execute,  either  with  despatch 
or  with  secrecy.  In  short,  they  may  consult, 
and  deliberate,  and  recommend,  and  make  re- 
quisitions, and  they  who  please  may  regard 
them."  ! 

The  national  life  was  not  secured  by  the 
treaty  of  peace,  which  only  gave  an  opportunity 
for  it ;  and  the  time  between  1783  and  the 
adoption  of  the  Constitution  of  1788  was,  per- 
haps, "  the  most  critical  period  of  the  country's 
history."  2  The  people  were  restless  under  the 
depression  of  trade  and  the  depreciated  cur- 
rency ;  rioting  threatened  in  many  States,  and  in 
Massachusetts  became  rebellion.  "  I  am  uneasy 
and  apprehensive,"  wrote  Jay  to  Washington, 
"  more  so  than  during  the  war.  Then  we  had  a 
fixed  object,  and  though  the  means  and  time  of 
obtaining  it  were  often  problematical,  yet  I  did 
firmly  believe  that  we  should  ultimately  succeed, 
because  I  did  firmly  believe  that  justice  was 
with  us."  3  The  liberty  so  dearly  won  seemed 
about  to  be  lost  forever  in  the  imminent  anar- 
chy.-^" If  faction  should  long  bear  down  law 
and  government,"  were  his  gloomy  words  to 

1  Address,  p.  6  ;  Ford,  Pamphlets  on  the  Constitution,  Brook- 
lyn, 1888,  p.  67. 

2  Trescot,  Diplomatic  History,  p.  9. 

3  June  27,  1786.  Marshall,  Life  of  Washington,  ii.  107. 


SECRETARY  FOR  FOREIGN  AFFAIRS.       247 

Adams,  "tyranny  may  raise  its  head,  and  the 
more  sober  part  of  the  people  may  even  think 
of  a  king."  1 

The  reasons  for  the  failure  of  the  Confeder- 
ation were  obvious,  and  Jay  laid  his  finger  on 
those  that  were  fundamental.  "  To  vest  legis- 
lative, judicial,  and  executive  powers  in  one  and 
the  same  body  of  men,  and  that,  too,  in  a  body 
daily  changing  its  members,  can  never  be  wise. 
In  my  opinion  those  three  great  departments  of 
sovereignty  should  be  forever  separated,  and  so 
distributed  as  to  serve  as  checks  on  each  other."  2 
This  principle  became  the  corner-stone  of  the 
federal  Constitution.  Government  by  com- 
mittees was  another  chief  cause  of  executive 
procrastination  and  inconsistency.  "  In  my  opin- 
ion," Jay  wrote  to  M.  Grand  in  Paris,  "  one 
superintendent  or  commissioner  of  the  treasury 
is  preferable  to  any  greater  number  of  them; 
indeed,  I  would  rather  have  each  department 
under  the  direction  of  one  able  man  than  of 
twenty  able  ones ;  "  3  and  modern  publicists  have 
reached  the  same  conclusion.  Finally,  coercive 
power  in  the  federal  government  was  essential ; 
"  a  mere  government  of  reason  and  persuasion," 

1  To  John  Adams,  May,  1786. 

2  To  Thos.  Jefferson,  Aug.  18,  1786,  Jay's  Jay,  I  256. 
8  April  28,  1785. 


248  JOHN  JAY. 

was  Jay's  unwilling  testimony,  "  is  little  adapted 
to  the  actual  state  of  human  nature."  1 

The  remedy  lay  in  securing  a  more  centralized 
form  of  government,  acting  on  the  people  di- 
rectly and  not  merely  through  the  States.  Jay 
was  in  this  sense  a  Federalist  from  the  begin- 
ning ;  a  strong  federal  union  he  considered  the 
real  aim  and  spirit  of  the  Kevolution ;  what  was 
new  was  rather  the  doctrine  of  extreme  State 
Rights  of  the  so-called  anti-Federalists.  "  It 
has,  until  lately,  been  a  received  and  uncontra- 
dicted  opinion,"  he  stated  in  the  "  Federalist," 
"  that  the  prosperity  of  the  people  of  America 
depended  on  their  continuing  firmly  united  ;  and 
the  wishes,  prayers,  and  efforts  of  our  best  citi- 
zens have  been  constantly  directed  to  that  ob- 
ject. But  politicians  now  appear  who  insist  that 
this  opinion  is  erroneous,  and  that  instead  of 
looking  for  safety  and  happiness  in  union,  we 
ought  to  seek  it  in  the  division  of  the  States 
into  distinct  sovereignties.  However  extraordi- 
nary this  new  doctrine  may  seem,  it  nevertheless 
has  its  advocates."  2  Even  from  France  Jay 
had  urged  the  necessity  of  centralization  :  "  I  am 
perfectly  convinced  that  no  time  is  to  be  lost 
in  raising  and  maintaining  a  national  spirit  in 
America.  Power  to  govern  the  confederacy  as 

1  To  Thos.  Jefferson,  April  24,  1787. 

2  Federalist,  No.  2. 


SECRETARY  FOR  FOREIGN  AFFAIRS.       249 

to  all  general  purposes  should  be  granted  and 
exercised."  1  In  his  zeal  for  nationality  he  was 
almost  extreme.  "  It  is  my  first  wish,"  he  wrote, 
May  Itf,  1785,  to  John  LoweU,  "to  see  the 
United  States  assume  and  merit  the  character 
of  one  great  nation,  whose  territory  is  divided 
into  different  States  merely  for  more  convenient 
government  and  the  more  easy  and  prompt  ad- 
ministration of  justice,  just  as  our  several  States 
are  divided  into  counties  and  townships  for  the 
like  purposes."  2  "I  am  convinced,"  he  wrote 
to  John  Adams  in  1786,  "that  a  national  gov- 
ernment as  strong  as  may  be  compatible  with 
liberty  is  necessary  to  give  us  national  security 
or  respectability."  3 

When,  therefore,  in  1787,  the  question  was 
put.  "  What  is  to  be  done  ?  "  and  an  answer  was 
demanded,  Jay  could  write  to  Washington  with 
some  definiteness.  To  increase  the  power  of 
Congress  would  be  ineffectual,  for  the  same  rea- 
sons that  always  make  a  large  committee  a  dila- 
tory and  inconsistent  executive.  "  Let  Congress 
legislate,  let  others  execute,  let  others  judge. 
Shall  we  have  a  king  ?  Not  in  my  opinion, 
while  other  expedients  remain  untried.  Might 
we  not  have  a  governor  general,  limited  in  his 

1  To  Gouverneiir  Morris,  Sept.  24,  1783,  Jay's  Jay,  ii.  132. 

2  Jay's  Jay,  i.  190. 

3  Ibid.,  May  4,  i.  249. 


250  JOHN  JAY, 

prerogatives  and  duration?  Might  not  Con- 
gress be  divided  into  an  upper  and  lower  house, 
the  former  appointed  for  life,  the  latter  annu- 
ally, and  let  the  governor-general  (to  'preserve 
the  balance),  with  the  advice  of  a  council  formed, 
for  that  only  purpose,  of  the  great  judicial  offi- 
cers, have  a  negative  on  their  acts  ?  .  .  .  What 
powers  should  be  granted  to  the  government,  so 
constituted  ?  .  .  .  I  think  the  more,  the  better ; 
the  States  retaining  only  so  much  as  may  be 
necessary  for  domestic  purposes,  and  all  their 
principal  officers,  civil  and  military,  being  com- 
missioned and  removable  by  the  national  govern- 
ment." l 

The  convention  which  met  at  Annapolis  in 
the  autumn  of  1786,  to  frame  a  uniform  sys- 
tem of  commercial  regulations,  dissolved  without 
other  result  than  recommending  a  convention  of 
delegates  from  the  several  States  to  revise  the 
Articles  of  Confederation.  Such  a  convention 
Jay  thought  of  doubtful  constitutionality,  as  the 
legislatures  from  which  the  delegates  were  to 
derive  their  authority  were  themselves  not  au- 
thorized to  alter  constitutions.  He  also  feared 
the  effects  of  delay,  in  case  their  report  was  to 
be  purely  recommendatory,  inoperative  till  rati- 
fied by  the  people.  Instead,  he  suggested  that 
Congress  should  recommend  the  election  of  state 
1  Jay's  Jay,  i.  254,  255. 


SECRETARY  FOR  FOREIGN  AFFAIRS.       251 

conventions  "  with  the  sole  and  express  power 
of  appointing  deputies  to  a  general  convention," 
whose  conclusions  should  have  the  force  of  law. 
By  this  scheme,  it  has  been  thought,  the  bitter 
partisan  dissensions  that  attended  the  adoption 
of  the  Constitution  might  have  been  avoided ; 1 
but  it  is  doubtful  whether  the  same  struggle 
would  not  have  taken  place  over  the  election  of 
the  delegates,  and  whether  many  States  might 
not  have  refused  on  such  conditions  to  elect  any 
delegates  at  all.2 

Of  the  Constitutional  Convention,  which  was 
elected  on  the  recommendation  of  Congress  "  to 
establish  a  firm  national  government,"  and  which 
met  at  Philadelphia  in  May,  1787,  Jay  was  not 
a  member ;  his  appointment  was  urged  by  Ham- 
ilton, was  carried  in  the  Assembly,  but  was  de- 
feated in  the  Senate  on  the  ground  only  of  his 
well-known  ultra-federal  opinions.  Of  the  three 
delegates  from  New  York,  two  left  the  conven- 
tion, one  of  them,  Lansing,  declaring  that  the 
legislature  would  never  have  sent  him  had  they 
supposed  its  powers  extended  "  to  the  formation 
of  a  national  government,  to  the  extinguishment 
of  their  independency."  3 

Jay,  however,  was  not  idle  in  the  cause  of  fed- 

1  Jay's  Jay,  i.  255. 

2  J.  A.  Stevens,  Mag.  Am.  History,  July  1878,  p.  394. 
8  Elliott,  Debates,  i.  141. 


252  JOHN  JAY. 

eralism.  Between  October,  1787,  and  June, 
1788,  the  "Federalist"  was  published  serially 
in  the  New  York  journals,  with  the  object  of 
recommending  the  cardinal  principles  of  the  new 
form  of  government ;  and  "  no  constitution,"  ac- 
cording to  Chancellor  Kent,  "ever  received  a 
more  masterly  and  successful  vindication."  1  "  It 
was  undertaken  last  fall,"  wrote  Madison  to  Jef- 
ferson, August  10,  1788,  "by  Jay,  Hamilton, 
and  myself.  The  proposal  came  from  the  two 
former.  The  execution  was  thrown,  by  the  sick- 
ness of  Jay,  mostly  011  the  two  others."  2  Jay 
was  the  author  of  the  second,  third,  fourth,  fifth, 
and  sixty -third  numbers.  The  first  series  of 
papers  was  a  careful  but  concise  argument  to 
prove  that  a  national  government  was  essential 
to  avert  "  dangers  from  foreign  force  and  influ- 
ence. For  all  general  purposes  we  have  always 
been  one  people  ;  as  a  nation  we  have  made 
peace  and  war,  and  formed  alliances  and  com- 
pacts with  foreign  states.  The  first  and  every 
succeeding  Congress  were  agreed  that  the  pros- 
perity of  America  depended  on  its  union.  Why 
should  it  be  otherwise  now  ?  "  3 

The  States  bordering  on  Spanish  and  British 
territory  "  under  the  impulse  of  sudden  irrita- 

• 

1  Commentaries,  i.  241. 

2  Jay's  second  letter  to  Dawson,  p.  21 
2  Federalist,  No.  2. 


SECRETARY  FOR  FOREIGN  AFFAIRS.       253 

tions,  and  a  quick  sense  of  apparent  interest  or 
injury,  will  be  most  likely  by  direct  violence  to 
excite  war  with  those  nations  ;  and  nothing  can 
so  effectually  obviate  that  danger  as  a  national 
government,  whose  wisdom  and  prudence  will 
not  be  diminished  by  the  passions  which  actuate 
the  parties  immediately  interested."  l  But  what- 
ever our  situation,  whether  united  or  split  into 
a  number  of  confederacies,  foreign  nations  will 
know  it  and  act  accordingly.  Independent  and 
probably  discordant  republics,  "  one  inclining  to 
Britain,  another  to  France,  and  a  third  to  Spain, 
and  perhaps  played  off  against  each  other  by  the 
three,"  would  fall  an  easy  prey  to  foreign  inva- 
sion or  encroachment.  "  How  soon  would  dear- 
bought  experience  proclaim,  that  when  a  people 
or  family  so  divide,  it  never  fails  to  be  against 
themselves."  In  war,  what  armies  could  they 
raise  or  pay,  and  how  ?  "  Who  shall  settle  terms 
of  peace  ?  And  in  case  of  disputes,  what  umpire 
shall  decide  between  them,  and  compel  acqui- 
escence ?  "  By  a  national  union  unreasonable 
causes  of  war  will  be  less  likely  to  arise ;  just 
causes  will  seldom  be  incurred ;  and  it  will  se- 
cure the  safety  of  the  States  "  by  placing  them 
in  a  situation  not  to  invite  hostility."  With 
France  and  Great  Britain  as  our  rivals  in  the 
fisheries  and  commerce,  with  Spain  excluding 

1  Federalist,  No.  3. 


254  JOHN  JAY. 

us  from  the  Mississippi,  and  Britain  keeping  us 
from  the  St.  Lawrence,  the  possibility  of  war 
must  be  considered.  "  War  may  arise  ;  will  not 
union  tend  to  discourage  it  ?  "  l  With  separate 
States  making  separate  and  perhaps  inconsistent 
treaties  with  foreign  nations,  will  not  disunion 
certainly  tend  to  encourage  war?2  The  last 
number  written  by  Jay,  No.  63,  was  a  vindica- 
tion of  the  treaty-making  power  vested  in  the 
Senate ;  and  the  original  draft,  which  is  still 
preserved,  with  its  frequent  alterations  and  in- 
terlineations, shows  the  extreme  care  with  which 
these  simply  written,  popular  papers  were  pre- 
pared.3 

The  "  sickness "  which  Madison  speaks  of, 
which  interrupted  Jay's  work  on  the  "  Federal- 
ist," was  due  to  a  wound  he  received  in  that 
singular  riot  known  as  "The  Doctors'  Mob." 
In  the  spring  of  1788  there  were  many  com- 
plaints in  the  newspapers  of  the  rifling  of  graves, 
one  body  being  taken,  it  was  said,  from  Trinity 
Churchyard.  These  complaints  were  replied  to 
with  ridicule  as  showing  "  a  disposition  to  inter- 
rupt the  students  of  physics  and  surgery  in  their 
pursuit  of  knowledge."  On  Sunday,  April  13th, 
some  boys  playing  by  the  hospital  declared  that 

1  Federalist,  No.  4. 

2  Ibid.,  No.  5. 

3  Hist.  Mag.,  May,  1867,  p.  267. 


SECRETARY  FOR  FOREIGN  AFFAIRS.   255 

they  saw  a  limb  hanging  out  of  a  window  ;  and 
a  mob  formed,  broke  into  the  building,  and  de- 
stroyed some  valuable  collections.  The  next 
morning  the  mob,  two  thousand  strong,  started 
to  search  the  houses  of  the  suspected  physicians, 
who  had  taken  refuge  in  the  gaol  for  safety. 
An  attack  was  made  on  the  gaol ;  the  militia 
was  called  out,  and  the  mayor  and  a  body  of 
armed  citizens  marched  to  its  relief.  "  Among 
those  who  interposed  their  personal  influence  for 
the  purpose  [of  restoring  peace]  was  Mr.  Jay, 
the  Secretary  of  Foreign  Affairs  to  Congress. 
In  proceeding  to  the  scene  of  action  he  received 
a  severe  wound  in  the  head  from  a  stone  thrown 
thro'  the  glass  of  his  chariot." 1  Gradually  the 
riots  subsided,  the  ringleaders  were  arrested  and 
indicted,  but,  in  view  of  the  excited  state  of  pub- 
lic feeling,  the  prosecutions  were  not  pushed. 

On  February  1,  1788,  the  Legislature  of 
New  York  resolved  to  submit  the  report  of  the 
Constitutional  Convention  to  delegates  to  be 
chosen  by  the  people;  and  at  the  election  in 
the  city,  late  in  April,  out  of  2,833  votes  cast, 
Jay  received  all  but  98.2  With  the  exception, 
however,  of  New  York  city  and  one  or  two 
adjoining  counties,  the  State  was  violently  anti- 

1  Wm.  A.  Duer,  quoted  with  the   newspaper  accounts  in 
Medical  Register  ofN.  F.,  N.  J.,  and  Conn.,  xxii.  265. 

2  Jay's  Jay,  i.  264. 


256  JOHN  JAY. 

Federalist,  and  it  was  calculated  that  out  of  the 
fifty -seven  delegates  only  eleven  were  favorable 
to  the  proposed  Constitution.  The  crisis  was 
extreme,  and  Jay,  so  soon  as  he  recovered  from 
his  wound,  published  anonymously  an  "  Address 
to  the  People  of  the  State  of  New  York."  l 

According  to  a  contemporary,  this  simply- 
written,  logical  pamphlet  had  "  a  most  astonish- 
ing influence  in  converting  anti-Federalists  to 
a  knowledge  and  belief  that  the  new  Constitu- 
tion was  their  only  salvation."  2  The  author  was 
soon  betrayed  by  "the  well-known  style,"  and 
Dr.  Franklin  urged  him  to  sign  his  name  to  it, 
"  to  give  additional  weight  at  this  awful  crisis."  3 
"  If  the  reasoning  in  the  pamphlet ...  is  sound," 
Jay  replied,  "  it  will  have  its  effect  on  candid 
and  discerning  minds ;  if  weak  and  inconclusive, 
my  name  will  not  render  it  otherwise."  4  The 
reasoning  of  the  paper  was  eminently  practical 
and  cogent,  and  its  appeal  to  the  logic  of  the 
situation  proved  clearly  enough  the  truth  of  the 
remark:  that  "we  were  forced  into  confedera- 
tion by  external,  into  union  by  internal,  neces- 
sities." 5  "  Our  affairs  are  daily  going  from  bad 
to  worse,"  said  Jay,  "  our  distresses  are  accumu- 

1  Ford,  Pamphlets  on  the  Constitution,  Brooklyn,  1788,  p.  67. 

2  S.  B.  Webb,  April  27,  1788. 

*  From  J.  Vaughan,  June  27,  1788,  Jay  MSS. 

4  To  John  Vaughan,  June  27,  1788,  Ibid. 

5  H.  0.  Taylor,  Mag.  Am.  Hist.,  Dec.,  1878,  p.  723. 


SECRETARY  FOR  FOREIGN  AFFAIRS.       257 

lating  like  compound  interest.  .  .  .  Let  it  be 
admitted  that  this  plan,  like  everything  else 
devised  by  man,  has  its  imperfections ;  that  it 
does  not  please  everybody  is  certain,  and  there 
is  little  reason  to  expect  one  that  will.  It  is  a 
question  of  grave  moment  to  you,  whether  the 
probability  of  your  being  able  to  obtain  a  bet- 
ter is  such  as  to  render  it  prudent  and  advis- 
able to  reject  this,  and  run  the  risque."  "If 
this  plan  is  rejected,  and  a  new  one  fails  or  is 
long  delayed,  as  it  must  be,  all  government 
meantime  coming  to  a  stop,  every  band  of 
union  would  be  severed.  Then  every  State 
would  be  a  little  nation,  jealous  of  its  neigh- 
bors, and  anxious  to  strengthen  itself  by  foreign 
alliances  against  its  former  friends.  .  .  .  What 
in  such  an  event  would  be  your  particular 
case  ? "  The  situation  was  indeed  almost  ab- 
surd, when  Jay  oould  report  to  Washington  that 
"  an  idea  has  taken  on,  that  the  southern  part 
of  the  State  will  at  all  events  adhere  to  the 
Union,  and,  if  necessary  to  that  end,  seek  a  sep- 
aration from  the  northern."  l 

On  June  17th  the  Convention  met  at  Phil- 
adelphia, the  seat  of  government  ever  since 
the  destruction  of  Kingston,  and,  in  spite  of 
the  unpromising  outlook,  Jay  was  able  to  fore- 
tell with  fair  accuracy  the  course  of  the  oppo- 
i  May  29, 1788,  Jay  MSS. 


258  JOHN  JAY. 

sition.  "  The  greater  number  are,  I  believe, 
averse  to  a  vote  of  rejection ;  some  would  be 
content  with  recommendatory  amendments; 
others  wish  for  explanatory  ones  to  settle  con- 
structions which  they  think  doubtful ;  others 
would  not  be  satisfied  with  less  than  absolute 
and  previous  amendments,  and  I  am  mistaken  if 
there  be  not  a  few  who  prefer  a  separation  from 
the  union  to  any  national  government  whatever. 
They  suggest  hints  of  the  importance  of  this 
State,  of  its  capacity  to  command  terms,  of  the 
policy  of  its  taking  its  own  time,  and  fixing  its 
own  price,  etc.  They  hint  that  an  adjournment 
may  be  expedient,  and  that  it  might  be  best  to 
see  the  operation  of  the  new  government  before 
they  receive  it.  The  people,  however,  are  grad- 
ually coming  right,  notwithstanding  the  singu- 
lar pains  taken  to  prevent  it."  1  It  should  be 
remembered,  too,  that  state  pride  had  been 
grievously  wounded  by  the  separation  of  Ver- 
mont, and  was  all  the  more  set  against  any  fur- 
ther diminution  of  its  power  and  dignity. 

The  Constitution  was  discussed  section  by 
section.  The  question  of  representation  in  the 
House  of  Representatives  at  once  awoke  the  in- 
terminable duel  between  State  Rights  and  Feder- 
alism, and  Alexander  Hamilton,  the  "  Colossus  " 
of  the  Convention,  was  opposed  by  Melancthon 
1  To  Washington,  June,  1788. 


SECRETARY  FOR  FOREIGN  AFFAIRS.       259 

Smith,  the  most  formidable  of  the  anti-Feder- 
alists. The  debate  was  closed  by  Jay,  who, 
according  to  a  recent  writer,  "  with  extreme 
tact  .  .  .  laid  stress  on  the  point  that  all  sides 
agreed  that  a  strong,  energetic  government  was 
necessary  and  practicable."  1  The  formation  of 
the  Senate  then  became  the  theme  of  hot  dis- 
cussion for  many  days,  and  the  anti-Federalists 
were  still  urging  a  shorter  term  of  office  for 
Senators,  when  news  reached  Poughkeepsie  that 
New  Hampshire,  the  ninth  State,  had  ratified, 
and  the  new  government  was  already  a  fact. 
The  time  had  come  which  Jay  had  anticipated 
in  his  Address.  "  Suppose  nine  States  should 
.  .  .  adopt  it,  would  you  not  in  that  case  be 
obliged  either  to  separate  from  the  Union,  or 
rescind  your  dissent?  The  first  would  not  be 
eligible,  nor  the  latter  pleasant."  The  situation 
was  changed  on  the  instant ;  it  was  no  longer  a 
question  of  ratification,  but  merely  of  the  terms 
of  ratification. 

The  Fourth  of  July  was  spent  by  the  dele- 
gates in  a  general  celebration  of  the  day. 
"  Two  tables,"  Jay  wrote  to  his  wife,  "  but  in 
different  houses,  were  spread  for  the  Conven- 
tion, the  two  parties  mingled  at  each  table,  and 
the  toasts  (of  which  each  had  copies)  were 
communicated  by  the  sound  of  drum,  and 
1  J.  A.  Stevens,  Mag.  of  Am.  Hist,  July,  1878. 


260  JOHN  JAY. 

accompanied  by  the  discharge  of  cannon.'* 1 
The  next  day  the  anti-Federalists  returned  to 
their  dying  struggles.  On  July  llth  Jay  moved 
the  ratification  of  the  Constitution  and  the  rec- 
ommendation of  any  amendments  that  should 
be  adopted.  After  four  days'  discussion  Me- 
lancthon  Smith  moved  that  the  amendments 
relating  to  the  service  of  the  militia  and  the 
laying  of  direct  taxes  be  conditional  to  ratifica- 
tion. On  the  19th  other  amendments  were 
moved  on  similar  terms.  At  length,  on  the  23d, 
a  test  vote  was  had,  under  the  influence  of  the 
news  from  Virginia ;  and  an  expression  of  "  full 
confidence"  that  the  amendments  would  be 
adopted  was  substituted  by  a  majority  of  two 
for  the  stipulation  of  any  condition.  The  reser- 
vation of  a  right  to  withdraw  from  the  Union  if 
the  amendments  were  not  submitted  to  a  general 
convention  was  voted  down.  Instead  thereof 
Jay,  in  spite  of  his  protest,  was  directed  to  pre- 
pare and  transmit  to  the  several  state  legisla- 
tures a  letter  recommending  another  general  con- 
vention to  consider  the  amendments,  "  a  singular 
proof,"  says  Stevens,  "  of  the  public  confidence 
in  the  probity  and  fairness  of  his  judicial 
mind."2  Jay  and  Hamilton  had  to  choose 
between  the  evils  of  a  call  for  a  second  conven- 

1  July  5,  1788,  Jay  MSS. 

2  Mag.  of  Am  Hist.,  July,  1878.  p.  403. 


SECRETARY  FOR  FOREIGN  AFFAIRS.       261 
i 

tion  and  a  rejection  of  the  Constitution  by  the 
State,  and  chose  wisely,  for  the  call  proved  nu- 
gatory. "  I  did  not,  I  confess,"  wrote  Washing- 
ton to  Jay,  "  see  how  it  could  be  avoided."  l 

On  Saturday,  July  26th,  after  forty  days  of 
"  an  ordeal  torture,"  to  quote  the  words  of  a  wit- 
ness, by  a  majority  of  three  votes  only,  the  Con- 
stitution was  ratified.  The  laurels  of  the  victory 
were  borne  by  Hamilton,  but  the  work  of  Jay 
was  such  that  Washington  wrote  from  Mount 
Vernon :  "  With  peculiar  pleasure  I  now  con- 
gratulate you  on  the  success  of  your  labors  to 
obtain  an  unconditional  ratification."  2  In  1815 
John  Adams  bore  similar  testimony.  Writing 
to  James  Lloyd  about  the  early  Federalists,  he 
said :  "  I  forbore  to  mention  one  of  more  im- 
portance than  any  of  the  rest,  indeed  of  almost 
as  much  weight  as  all  the  rest.  I  mean  Mr. 
Jay.  That  gentleman  had  as  much  influence 
in  the  preparatory  measures  in  digesting  the 
Constitution,  and  obtaining  its  adoption,  as  any 
man  in  the  nation.  His  known  familiarity  with 
Madison  and  Hamilton,  his  connection  with  all 
the  members  of  the  old  Congress,  have  given  to 
these  writings  [the  '  Federalist ']  more  consider- 
ation than  both  the  other  writers  could  have 
given  them."  3 

1  Washington  s  Works,  ix.  408. 

2  Aug.  3,  1788,  Jay's  Jay,  ii.  194. 

8  Feb.  6,  1815,  John  Adams's  Works,  x.  115. 


CHAPTER  X. 

CHIEF   JUSTICE   OF   THE   UNITED    STATES. 

1789-1795. 

JAY  continued  to  act  as  Secretary  for  For- 
eign Affairs  till  Jefferson's  return  from  France 
in  the  spring  of  1790,  and  as  such  took  part  in 
the  inauguration  of  Washington.  In  forming 
the  new  government  the  President  showed  his 
regard  and  admiration  for  Jay  by  offering  him 
the  choice  of  the  federal  offices.  Of  the  three 
departments,  the  executive,  the  legislative,  and 
the  judicial,  all  theoretically  of  equal  dignity, 
and  each  equally  independent,  that  of  justice 
seemed  at  the  moment  of  most  importance.  The 
violent  opposition  of  the  anti-Federalists  to  any 
strong  national  government  foreboded  bitter  con- 
tests over  the  construction  of  the  Constitution ; 
and  the  only  safeguard  was  the  organization  of 
a  wise  and  powerful  Supreme  Court.  For  al- 
most every  other  provision  of  the  Constitution 
there  was  some  precedent  either  in  the  theory  or 
practice  of  the  English  Constitution,  or  in  the 


CHIEF  JUSTICE   OF   THE    UNITED  STATES.     263 

institutions  of  some  colony  or  province  ;  but  the 
Supreme  Court,  at  least  in  respect  to  its  original 
jurisdiction,  was  apparently  the  unprecedented 
result  of  the  requirements  of  the  new  system  of 
government  with  its  complex  correlation  of  na- 
tional and  confederate  state  sovereignties.  For 
its  only  predecessors  were  the  Judiciary  Com- 
mittees of  the  Congress  under  the  Confedera- 
tion, which  acted  intermittently  as  courts  of  ad- 
miralty in  cases  of  prize,  and  as  boards  of 
arbitration  in  questions  of  state  boundaries. 
To  maintain  its  theoretical  position  as  "  the  key- 
stone of  our  political  fabric,"  in  the  words  of 
Washington,  the  court  had  to  claim  the  dignity 
and  win  the  popular  respect  inherited  by  other 
courts.  Its  power  as  interpreter  and  guardian 
of  the  Constitution,  that  is  to  say  the  conserva- 
tion and  perpetuity  of  the  Republic  as  estab- 
lished by  its  founders,  depended  upon  the  per- 
sonal respectability  and  wisdom  of  the  members 
of  its  bench.  Such  thoughts  must  have  been  fa- 
miliar to  Jay  when,  of  all  the  great  offices,  he 
chose  the  chief  justiceship.  The  court  was  cre- 
ated by  the  Judiciary  Bill,  approved  on  Septem- 
ber 24th,  which  provided  for  the  appointment  of 
a  chief  justice  and  five  associate  justices,  and  on 
the  26th  Jay  was  nominated  and  confirmed  by 
the  Senate.  "  In  nominating  you  for  the  impor- 
tant station  which  you  now  fill,"  wrote  Wash- 


264  JOHN  JAY. 

ington,  "  I  not  only  acted  in  conformity  with 
my  best  judgment,  but  I  trust  I  did  a  grateful 
thing  to  the  good  citizens  of  these  United 
States."  i 

During  Jay's  short  tenure  of  office  few  causes 
came  before  the  court,  and  with  one  exception 
the  decisions  are  preserved  only  in  the  brief  and 
dry  minutes  of  the  clerk.  Yet  three  great  facts 
were  determined  once  for  all:  the  dignity  of 
the  court  was  vindicated  from  encroachment  by 
the  federal  executive  and  legislative  depart- 
ments ;  its  jurisdiction  was  established  over  the 
state  governments ;  and,  incidentally,  Jay  an- 
nounced and  determined  that  foreign  policy  of. 
the  United  States  which  has  been  accepted  and 
followed  from  that  day  to  this. 

On  February  1,  1790,  in  the  old  Federal  Hall 
in  New  York,  Jay  and  two  associate  judges  met 
and  adjourned  for  lack  of  a  quorum.  On  Feb- 
ruary 2d  the  court  organized,  the  letters  patent 
appointing  the  several  justices  were  read,  and 
a  "cryer"  was  appointed.  On  the  following 
days  a  clerk  was  sworn  in,  seals  for  the  Supreme 
Court  and  the  Circuit  Courts  were  chosen,  or- 
ders were  adopted  for  the  admission  of  attorneys 
and  counselors,  and  many  of  the  first  lawyers 
in  the  country  were  admitted  accordingly,  — 
Elias  Boudinot,  Egbert  Benson,  Fisher  Ames, 
1  Oct.  5,  1789,  Writings  of  Washington,  x.  35. 


CHIEF  JUSTICE   OF   THE   UNITED  STATES.     265 

Robert  Morris,  Edward  Livingston.  Twice  a 
year,  according  to  law,  Circuit  Courts  were  held, 
each  by  two  justices  of  the  Supreme  Court  and 
a  district  judge.  Jay's  circuit  included  New 
York  and  New  England,  and  in  New  York  city, 
April  4,  1790,  he  delivered  his  first  charge  as 
a  federal  judge  to  the  grand  jury.  "  Let  it  be 
remembered,"  he  said,  "  that  civil  liberty  con- 
sists not  in  a  right  to  every  man  to  do  just  what 
he  pleases ;  but  it  consists  in  an  equal  right  to 
all  the  citizens  to  have,  enjoy,  and  do,  in  peace, 
security,  and  without  molestation,  whatever  the 
equal  and  constitutional  laws  of  the  country 
admit  to  be  consistent  with  the  public  good."  l 
On  adjourning  the  court  in  New  York,  Jay 
continued  on  circuit  through  New  England,  hold- 
ing courts  in  Connecticut  April  22d,  in  Massa- 
chusetts May  4th,  and  in  New  Hampshire  May 
20th.  At  the  time  of  this  first  circuit,  an  eye- 
witness in  Boston  gives  the  following  account 
of  the  personal  appearance  of  the  chief  justice  : 
"  His  height  was  a  little  less  than  six  feet ;  his 
person  rather  thin,  but  well  formed.  His  com- 
plexion was  without  color,  his  eyes  black  [they 
were  really  blue]  and  penetrating,  his  nose 
aquiline,  and  his  chin  pointed.  His  hair  came 
over  his  forehead,  was  tied  behind,  and  lightly 
powdered.  His  dress  black.  The  expression  of 

1  Jay's  Jay,  i.  276. 


266  JOHN  JAY. 

his  face  was  exceedingly  amiable.  When  stand- 
ing, he  was  a  little  inclined  forward,  as  is  not 
uncommon  with  students  long  accustomed  to 
bend  over  a  table.  His  manner  was  very  gentle 
and  unassuming."  1  Everywhere,  especially  in 
Massachusetts,  he  was  received  with  enthusiasm. 
Invitations  from  friends  poured  in  on  him  to 
stay  with  them  while  holding  court,  but  with 
almost  super-sensitive  delicacy  he  decided  that 
it  would  be  more  proper  to  lodge  only  at  the 
public  inns.2 

While  at  Boston  he  received  a  degree  of  Doc- 
tor of  Laws  from  Harvard  College,  an  honor  he 
had  received  also  with  Adams  and  Franklin  at 
the  close  of  the  peace  negotiations  from  the 
University  of  Dublin.  He  wrote  a  little  later 
to  his  wife  :  "  I  had  two  days  ago  a  pleasant 
ride  to  Cambridge  over  the  new  bridge  of  which 
you  have  often  heard.  We  extended  our  ex- 
cursion to  some  pretty  seats  not  far  from  the 
college,  and  among  others  Mr.  Gerry's.  On 
Wednesday  next  I  purpose,  on  invitation  from 
Judge  Gushing  and  General  Lincoln,  to  visit 
them.  This  will  take  me  thirty  miles  out  of  my 
way  to  Portsmouth,  but  having  time  enough, 
and  my  horses  in  good  order,  that  circumstance 
is  not  very  important.  .  .  .  Cold  easterly  winds 

1  Sullivan,  Letters  on  Public  Characters,  p.  59. 

2  Jay's  Jay,  i.  277. 


CHIEF  JUSTICE   OF  THE    UNITED  STATES.    267 

seem  to  prevail  here  ;  I  think  our  climate  a  better 
one."  1  In  those  days  a  judge  must  have  needed 
considerable  physical  endurance  to  ride  in  two 
months  through  four  States,  and  must  have 
spent  far  more  time  in  the  saddle  than  on  the 
bench.  In  the  autumn  he  again  rode  the  circuit 
and  held  courts  at  Boston,  Exeter,  Providence, 
Hartford,  and  Albany.  In  the  winter  John 
Adams  at  Philadelphia  begged  for  a  visit,  in 
characteristic  phrase  :  "  As  you  are  a  Roman  the 
jus  hospitii  will  not  be  disputed  by  you."  But 
Jay  deferred  his  visit  till  the  February  term, 
1791.  when  the  court  removed  there  with  the 
shifting  seat  of  government  from  New  York. 
Then  the  first  case  was  entered  on  the  docket, 
Van  Staphorst  v.  the  State  of  Maryland,  but 
was  discontinued  on  agreement  by  the  parties  to 
pay  their  own  costs.  In  August  rules  of  prac- 
tice were  declared,  —  substantially  the  rules  of 
the  King's  Bench  and  the  Court  of  Chancery  in 
England. 

In  April  the  Circuit  Court  for  the  District  of 
New  York,  with  Jay  presiding,  agreed  unani- 
mously to  a  protest  against  an  act  of  Congress 
providing  that  applications  for  invalid  pensions 
should  be  passed  on  by  the  judges  of  the  Su- 
preme Courts  in  their  respective  circuits.  The 
protest  declared  that  Congress  could  not  assign 

1  May  6,  1790,  Jay  MSS. 


268  JOHN  JAY. 

to  the  judiciary  "  any  duties,  but  sucli  as  are 
properly  judicial,  and  to  be  performed  in  a  judi- 
cial manner.  That  the  duties  assigned  to  the 
Circuit  Courts  by  this  act  are  not  of  that  de- 
scription, .  .  .  inasmuch  as  it  subjects  the  de- 
cisions of  these  Courts,  made  pursuant  to  those 
duties,  first  to  the  consideration  and  suspension 
of  the  Secretary  at  War,  and  then  to  the  revi- 
sion of  the  Legislature  ;  whereas,  by  the  Con- 
stitution, neither  the  Secretary  at  War,  nor  any 
other  Executive  officer,  nor  even  the  Legislature, 
are  authorized  to  sit  as  a  Court  of  Errors  on  the 
judicial  acts  or  opinions  of  this  Court."  l  Ac- 
cordingly when  the  question  came  before  the 
court  on  a  motion  for  a  mandamus  in  Hayburn's 
Case,  before  a  decision  was  given,  the  obnoxious 
act  was  repealed.  Practically  the  court  had 
declared  for  the  first  time  an  act  of  Congress 
unconstitutional. 

On  February  16,  1792,  at  a  meeting  of  his 
friends  in  New  York  city,  Jay  was  nominated 
for  governor  in  opposition  to  Clinton,  who  had 
held  that  office  continuously  since  June,  1777.2 
He  accepted  the  nomination,  stipulating,  how- 
ever, that  he  should  not  be  required  to  take 
any  active  part  in  the  campaign.  "  I  made  it 
a  rule,"  he  wrote  to  a  friend,  "  neither  to  begin 

1  2  Ball.  410  note. 

2  N.  Y.  Journal,  Feb.  18,  1792. 


CHIEF  JUSTICE   OF  THE    UNITED  STATES.    269 

correspondence  nor  conversation  upon  the  sub- 
ject." The  selection  of  the  chief  justice  as  a 
candidate,  and  his  acceptance,  the  virulence  of 
the  election  and  its  fraudulent  conclusion,  need 
a  word  of  explanation  ;  more  especially  as  those 
issues  were  now,  for  the  first  time,  clearly  de- 
fined, which  a  few  years  later  were  to  give  rise 
to  the  Kepublican  party. 

Before  the  Revolution  the  parties  in  the  colo- 
nies were  practically  identical  with  the  Whigs 
and  Tories  of  the  mother  country,  the  Whigs  or 
anti-prerogative  men  supporting  ever  the  cause 
of  the  people  against  arbitrary  or  illegal  acts  of 
the  governor  or  the  council.  In  the  early  days 
of  the  Revolution  the  ultra  Tories  were  gradually 
driven  into  the  ranks  of  the  enemy,  until  for 
a  time  it  might  be  said  that  all  revolutionary 
America  had  become  Whig ;  the  name  Tory, 
however,  was  still  applied  to  those  who,  though 
opposed  to  the  usurpations  of  George  III.,  were 
averse  to  a  final  separation  from  England.  The 
victorious  party  in  a  civil  war  always  divides 
at  its  close  on  the  question  of  terms  to  the 
vanquished,  and  so  far  as  concerned  American 
politics  the  Revolution  may  be  regarded  as  a 
civil  war.  In  New  York  State,  where  the  roy- 
alists had  been  the  most  united  and  the  most 
irreconcilable,  public  feeling  against  them  was 
intensely  vindictive.  To  the  majority  of  the 


270  JOHN  JAY. 

people  the  Kevolution  meant  only  the  local  rev- 
olution in  the  State,  the  guerrilla  warfare  in 
West  Chester  County,  the  Indian  raids  on  the 
border,  the  enemy's  occupation  and  abandonment 
of  the  city ;  so  the  return  of  peace  found  them 
excited  by  personal  resentment,  and  eager  for 
revenge.  There  were  few  men,  even  in  public 
life,  who  had  had  experience  outside  of  the 
State,  and  it  was  chiefly  those  who  had  such 
experience,  like  Jay  and  Hamilton,  who  could 
see  the  necessity  of  conciliation,  the  impolicy  of 
alienating  any  citizens,  however  mistaken,  who 
had  honestly  preserved  their  neutrality.  Jay 
would  exclude  from  the  country  only  those  roy- 
alists who  had  shown  themselves  perfidious  or 
cruel,  and  was  indignant  at  the  violent  acts  of 
confiscation  and  disfranchisement  which  the  gust 
of  popular  hatred  swept  through  the  legislature 
during  the  years  immediately  preceding  and  suc- 
ceeding the  treaty  of  peace.  The  infamous 
Trespass  Act,  through  the  fearless  oratory  of 
Hamilton,  was  declared  unconstitutional,  and  one 
by  one  the  other  prescriptive  acts  were  repealed 
in  spite  of  the  constant  opposition  of  Clinton, 
the  war  governor  of  the  State,  that  burly,  mag- 
netic man,  of  north  of  Ireland  stock,  endowed 
with  all  the  stubborn  prejudices  of  his  race.  Pro- 
scription of  the  royalists  sprang  from  unreflect- 
ing, local,  personal  feelings  ;  it  was  forbidden 


CHIEF  JUSTICE  OF  THE   UNITED  STATES.    271 

also  by  the  treaty  of  peace  arid  the  recommen- 
dation of  Congress.  So  the  Whigs  were  already 
dividing  along  lines  of  national  and  local  poli- 
tics. 

The  survival  of  pre-revolutionary  provincial 
modes  of  thought  and  feeling  was,  perhaps,  the 
basis  of  anti-Federalism ;  and  as  the  majority  of 
the  people  were  farmers,  slow  to  change,  little 
moved  by  argument,  the  State  was  naturally 
anti-Federalist,  save  so  far  as  it  was  affected  by 
the  excitement  and  necessities  of  the  Revolu- 
tion, which  made  Federalists  of  the  more  thought- 
ful leaders  of  the  war.  In  1783  Clinton  and 
his  friends  brought  about  the  repeal  of  the  Act 
granting  the  duties  of  the  port  of  New  York  to 
the  United  States,  to  be  collected  by  federal  offi- 
cers ;  and  they  secured  the  appointment  of  the 
collectors  by  the  State,  an  impracticable  change 
which  soon  had  to  be  amended.  Before,  then, 
the  Federalist  party,  so-called,  existed,  Clinton 
and  his  adherents  were  virtually  anti-Federalists. 
In  the  Constitutional  Convention  two  of  the 
three  New  York  delegates  left  the  Convention 
in  accordance  with  the  well-known  views  of  the 
legislature,  which  desired  only  the  amendment 
of  the  Articles  of  Confederation ;  and  in  the 
Constitutional  Convention  of  the  State,  Clinton 
threw  his  great  influence  steadily  against  ratifi- 
cation, until  longer  resistance  became  impossible. 


272  JOHN  JAY. 

To  the  generality  of  the  people,  for  many  years 
to  come,  no  government  seemed  legal  but  the 
state  government,  and  the  Congress  at  Phila- 
delphia loomed  as  remote  and  foreign  as  a  Par- 
liament at  London.  Of  Congress  no  slander 
was  too  gross  to  be  believed,  and  the  Cabinet  of 
"Washington  was  represented  as  "  forging  the 
chains  of  monarchy  and  aristocracy."  The  as- 
sumption of  state  debts  by  the  national  govern- 
ment was  a  clever  device  for  enslaving  the  peo- 
ple ;  the  brilliant  financiering  of  Hamilton  was 
part  of  the  same  dishonest  scheme.  The  year 
1791  was  summarized  as  "  the  reign  of  specu- 
lators. A  free  gift  of  sixty  per  cent,  added  to 
the  capitals  of  speculators  by  means  of  the  Bank, 
and  other  governmental  douceurs.  Banks,  bub- 
bles, tontines,  lotteries,  monopolies,  usury,  gam- 
bling, swindling,  etc.,  abound  ;  poverty  in  the 
country ;  luxury  in  the  capitals  ;  corruption  and 
usurpation  in  the  national  councils." 1  Year 
after  year  was  Clinton  reflected  without  serious 
opposition ;  and  in  1789  the  Federalists  dared 
attempt  no  more  than  to  divide  the  overwhelm- 
ing majority  by  nominating  Robert  Yates,  of 
the  state  Supreme  Court,  himself  an  anti-Feder- 
alist. Such  was  the  state  of  affairs  in  New 
York  when  John  Jay  was  nominated  for  the 
governorship. 

1  N.  Y.  Journal,  July  4,  1792. 


CHIEF  JUSTICE  OF  THE   UNITED  STATES.     273 

From  regard  to  popular  prejudice  the  cam- 
paign was  conducted  by  the  Federalists  with 
extraordinary  caution.  Apparently  no  appeal 
was  made  to  general  principles ;  they  simply 
argued  that  Clinton  had  been  governor  long 
enough,  and  urged  the  value  of  Jay 's  services  to 
the  State  and  the  nation.  It  was  admitted  even 
by  the  governor's  friends  that  he  had  used  the 
patronage  of  his  office  "  to  strengthen  his  own 
popularity  and  to  advance  his  own  views  in 
regard  to  questions  of  public  policy." l  The 
Federalists,  therefore,  considered  themselves 
civil  service  reformers,  but  somewhat  curiously 
contended  that  rotation  in  office  was  in  itself 
desirable,  as  the  best  preservative  of  republican- 
ism and  the  safeguard  against  undue  influence ; 2 
while  the  anti-Federalists,  unlike  their  modern 
representatives,  sensibly  replied  that  change  of 
officers  without  cause  was  an  absurdity.3  Clin- 
ton, according  to  the  Federalists,  had  been  an 
admirable  "military  governor,"  but  his  special 
services  had  terminated  with  the  war.  Troubles 
with  the  Iroquois  are  threatening,  was  the  reply, 
how  can  a  man  of  peace  deal  with  them  ?  4 

As  election  day  drew  near,  it  appeared  that 

1  Jenkins,  Governors  of  N.  Y.,  p.  61. 

2  N.  Y.  Journal,  March  7,  1792  ;  N.  Y.  Journal,  March  24. 
8  Ibid.,  Feb.  29.  1792. 

*  Ibid.,  March  7,  1792. 


274  JOHN  JAY. 

the  industry  of  manufacturing  what  we  call 
"  campaign  lies  "  was  almost  as  active,  and  cer- 
tainly as  ingenious,  then  as  now.  The  State 
owned  vast  tracts  of  public  land  towards  the 
Canadian  borders,  and  Clinton  was  accused  of 
conniving  at  the  sale  of  a  single  estate  of  nearly 
four  million  acres  to  Alexander  McComb,  with 
a  view  to  connecting  it  with  British  territory. 
Against  Jay  stories  were  circulated  equally  ab- 
surd. New  York  was  then  a  slave  -  holding 
State,  and  it  was  asserted  that  Jay  proposed  "  to 
rob  every  Dutchman  "  of  his  slaves.  Jay  was, 
however,  even  on  the  question  of  slavery  no  ex- 
tremist. As  a  statesman  he  considered  eman- 
cipation, like  other  political  questions,  a  matter 
depending  on  practical  rather  than,  abstract  con- 
siderations. "  Every  man,  of  every  colour  and 
description,"  he  wrote  to  a  friend,  "  has  a  nat- 
ural right  to  freedom,  and  I  shall  ever  acknowl- 
edge myself  to  be  an  advocate  for  the  manumis- 
sion of  slaves  in  such  way  as  may  be  consistent 
with  the  justice  due  to  them,  with  the  justice 
due  to  their  masters,  and  with  the  regard  due 
to  the  actual  state  of  society.  These  considera- 
tions unite  in  convincing  me  that  the  abolition 
of  slavery  must  necessarily  be  gradual."  1  His 
enemies  then  published  a  statement  that  in  con- 
versation with  certain  gentlemen  Jay  had  said  : 
1  Feb.  27,  1792,  Jay's  Jay,  I  285. 


._  CHIEF  JUSTICE  OF  THE  UNITED  STATES.  275 

"  There  ought  to  be  in  America  but  two  sorts  of 
people,  the  one  very  rich  and  the  other  very 
poor."  The  gentleman  mentioned  at  once  signed 
a  card  to  the  public  contradicting  the  ridiculous 
slander  ; l  but  so  long-lived  was  it,  and  so  cred- 
ulous were  the  people  of  that fday,  that  .it  was 
repeated  and  had  to  be  again  contradicted  with 
affidavits  three  years  later.  To  the  mortifica- 
tion of  Jay,  his  old  friend,  Chancellor  Living- 
ston, and  others  of  his  wife's  relatives,  now  de- 
serted the  President's  party,  by  reason  of  some 
fancied  neglect,  as  it  was  believed,  in  the  matter 
of  appointments ;  and  the  Chancellor's  enthusi- 
astic zeal  of  a  new  convert  was  skillfully  fanned 
by  the  publication  of  satirical  letters  attributed 
to  Jay.  This  insinuation  was  also  met  by  a 
prompt  denial  signed  by  Jay  himself.2 

To  the  people,  Jay  and  Clinton  were  sedu- 
lously represented  as  the  aristocrat  and  the  re- 
publican ;  Jay  as  accustomed  to  draw  a  large 
salary  in  the  "  luxury  of  splendid  courts,"  and 
now  supported  by  the  "powerful  landed  inter- 
est "  of  the  Van  Rensselaers,  while  Clinton  was 
the  hardy  son  of  toil.  It  was  said  that  Jay  was 
the  nominee  of  the  President  and  the  Secretary 
of  the  Treasury,  and  that  all  the  influence  of  the 
government  was  for  him.  "  Do  you  not  tremble 

1  April  5,  1792,  Jay  MSS. 

2  Jay's  Jay,  i.  286. 


276  JOHN  JAY. 

for  the  independence  of  the  State?"1  "We 
are  rich,"  thundered  "  Cato,"  "  our  coffers  full, 
while  those  of  the  Union  are  empty,  and  by  no 
means  equal  to  the  exigencies  of  government. 
I  should  not  wonder  at  a  proposition  from  the 
Secretary  of  the  Treasury  to  take  on  loan  at  ten 
per  cent,  from  this  State  all  the  unappropriated 
money  in  it.  ...  Could  Mr.  Jay  discountenance 
this,  as  coming  from  the  government,  which 
has  been  his  friend  and  support?  "  2  State  love 
was  appealed  to  by  "  Cincinnatus,"  even  from 
another  side,  to  keep  Jay  where  he  was  :  "  It  is 
of  some  importance  to  have  a  citizen  of  your 
State  at  the  head  of  the  judiciary  of  the  United 
States."  3 

So  the  battle  raged,  but  at  the  election  it  was 
soon  discovered  that  the  votes  for  Jay  outnum- 
bered those  for  Clinton.  But  a  returning  board, 
a  joint  committee  of  the  legislature  of  whom  the 
majority  were  Clintonians,  found  the  returns 
from  three  counties,  which  notoriously  had  gone 
Federalist,  were  technically  defective.  The  law 
provided  that  the  votes  of  each  town  should  be 
transmitted  in  sealed  boxes  by  the  respective 
county  sheriffs  to  the  Secretary  of  State.  But 
the  ballots  of  Otsego  County  had  been  delivered 

1  N.  Y.  Journal,  March  24,  1792. 

2  Ibid.,  March  31,  1792. 

3  Ibid.,  April  18,  1792, 


CHIEF  JUSTICE    OF  THE   UNITED  STATES.    277 

by  the  ex-sheriff,  whose  term  had  just  expired, 
the  new  sheriff  not  having  qualified.  Those  of 
Tiogo  were  given  by  the  sheriff  to  a  special 
deputy,  who  was  taken  sick  on  the  road  and  sent 
them  on  by  his  clerk ;  and  those  of  Clinton 
were  delivered  by  the  sheriff  to  one  who  had  no 
written  deputation,  but  who  returned  them  per- 
sonally.1 Aaron  Burr  and  Rufus  King  were 
asked  for  legal  opinions  ;  King,  the  Federalist, 
advised  that  the  returns  from  all  three  counties 
were  legal ;  Burr,  the  Republican,  held  that  all 
were  illegal,  —  a  conclusion  which  he  reached, 
as  he  said,  "  not  without  sensible  regret,  as  no 
suspicion  was  entertained  of  the  fairness  of 
these  elections."2  It  was  generally  believed 
that  the  Federalist  majority  in  Otsego  County 
alone  was  sufficient  to  elect  Jay ;  and  on  general 
principles,  as  the  ballots  had  been  delivered  to 
the  ex-sheriff  by  the  inspectors  before  the  ar- 
rival of  his  successor,3  and  there  was  no  other 
acting  sheriff  in  the  county  on  election  day,  his 
transfer  of  the  ballots  was  undoubtedly  legal ; 
otherwise  the  people  were  disfranchised  abso- 
lutely without  any  fault  of  their  own.4  The 

1  Davis,  Life  of  Burr,  i.  333. 

2  Ibid.,  i.  347. 

3  N.  Y.  Journal,  July  18,  1792,  quoting  Smith's  own  state- 
ments in  the  Albany  Gazette;  N.   Y.  Journal,  Dec.  5,  testi- 
mony of  the  clerk  of  Oswego. 

4  Hammond,  Pol.  Hist.  ofN.  Y.,  i.  62-67. 


278  JOHN  JAY. 

Constitution  provided  for  the  annual  appoint- 
ment of  sheriffs,  but  as  the  Council  of  Appoint- 
ment met  only  when  summoned  by  the  governor, 
it  was  customary  for  the  sheriffs  to  hold  over  till 
the  qualification  of  their  successors.  Seventy 
such  instances  had  occurred  since  1777;  in  one 
case  an  ex-sheriff  had  executed  a  criminal,1  and 
their  returns  of  votes  as  such  had  never  before 
been  seriously  questioned.  When  it  is  remem- 
bered that  the  inspectors  were  required  to  de- 
liver the  ballots  to  the  sheriff  without  delay,  the 
unsoundness  of  Burr's  decision  becomes  still 
more  clear.  Van  Rensselaer,  a  member  of  the 
Council,  was  said  to  have  urged  the  governor 
early  in  the  year  to  appoint  a  new  sheriff  in 
Otsego,  and  the  governor  had  replied,  that  it 
was  unnecessary  to  do  so,  since  the  old  one 
could  hold  over.  Therefore,  however  "  Brutus  " 
and  "  Julius  Caesar  "  might  argue  it  out  in  the 
newspapers,  the  decision  of  the  Council  was  a 
foregone  conclusion,  even  before  June  12th, 
when  they  announced  by  a  party  vote  of  seven 
to  four  the  election  of  Clinton,  and  ordered  the 
ballots  to  be  burnt,  though  the  custom  had  al- 
ways been  to  preserve  them  in  the  office  of  the 
Secretary  of  State.2 

Jay,  meanwhile,  was  leisurely  riding  his  cir- 
cuit,   apparently    indifferent    to    politics.       "  I 

1  Jay's  Jay,  i.  288.  2  N.  Y.  Journal,  Aug.  22,  1792. 


CHIEF  JUSTICE   OF   THE    UNITED  STATES.     279 

learn,"  he  writes  to  his  wife  from  New  Haven, 
"  that  we  shall  have  much  business  to  do  here, 
there  being  about  forty  actions.  .  .  .  On  the 
road  I  met  Mr.  Sodersheim.  ...  He  told  me 
Mr.  McComb  [the  unpopular  grantee  of  the 
McComb  patent]  was  in  gaol,  and  that  cer- 
tain others  had  ceased  to  be  rich.  .  .  .  Mrs. 
McComb  must  be  greatly  distressed.  Your 
friendly  attentions  to  her  would  be  grateful  and 
proper."1  Once  Mrs.  Jay  made  some  remark 
about  his  having  no  further  use  for  his  official 
robe  as  chief  justice,  —  that  robe  presumably 
with  salmon  colored  facings  whose  origin  has 
excited  so  much  speculation,  really  the  robe  he 
had  received  as  Doctor  of  Laws,  and  had  adapt- 
ed to  the  new  purpose.  "  My  robe,"  he  replied, 
"  may  become  useless  or  it  may  not.  I  am  re- 
signed to  either  event.  He  who  governs  all 
makes  no  mistakes,  and  a  firm  belief  of  this 
would  save  us  from  many." 2  On  the  day  of 
the  final  decision,  "  People  are  running  in  con- 
tinually," wrote  Mrs.  Jay,  "to  vent  their  vexa- 
tion. Poor  Jacob  Morris  looks  quite  disconso- 
late. King  says  he  thinks  Clinton  as  lawfully 
governor  of  Connecticut  as  of  New  York,  but  he 
knows  of  no  redress."3  "The  reflection  that 

1  To  Mrs.  Jay,  April  24,  1792,  Jay  MSS. 

2  Jay's  Jay,  I  287. 

3  From  Mrs.  Jay,  June  12,  1792,  Jay  MSS. 


280  JOHN  JAY. 

the  majority  of  electors  were  for  me  is  a  pleas- 
ing one,"  was  Jay's  philosophical  answer  from 
Hartford  ;  "  that  injustice  has  taken  place  does 
not  surprise  me,  and  I  hope  will  not  affect  you 
very  sensibly.  The  intelligence  found  me  per- 
fectly prepared  for  it.  ...  A  few  years  more 
will  put  us  all  in  the  dust,  and  it  will  then  be 
of  more  importance  to  me  to  have  governed  my- 
self, than  to  have  governed  the  State."  l 

From  Vermont  the  chief  justice  returned  home 
by  way  of  Albany.  As  he  drew  near  Lansing- 
burgh,  on  June  30th,  the  people  met  him  and 
escorted  him  to  the  village,  where  a  committee 
delivered  an  address,  declaring  that :  "  Though 
abuse  of  power  may  for  a  time  deprive  you  and 
the  citizens  of  their  right,  we  trust  the  sacred 
flame  of  liberty  is  not  so  far  extinguished  in  the 
bosoms  of  Americans  as  tamely  to  submit  to  the 
shackles  of  slavery,  without  at  least  a  struggle 
to  shake  them  off."  2  Public  dinners,  addresses, 
and  salvos  of  artillery  were  repeated  at  Albany 
and  Hudson  ;  and  eight  miles  from  New  York 
a  body  of  citizens  had  assembled  and  escorted 
him  to  his  house,  and  another  address  followed 
from  a  committee  of  the  Sons  of  Liberty.  His 
answer  was  eminently  conciliatory  and  conser- 
vative :  "  They  who  do  what  they  have  a  right 

1  Jay's  Jay,  i.  289. 

2  Ibid.,  I  200,  201. 


CHIEF  JUSTICE   OF  THE    UNITED   STATES.    281 

to  do,  give  no  just  cause  of  offense  ;  and,  there- 
fore, every  consideration  of  propriety  forbids 
that  difference  of  opinion  respecting  candidates 
should  suspend  or  interrupt  the  mutual  good- 
humor  and  benevolence  which  harmonize  society, 
and  soften  the  asperities  of  human  life."  l  As 
the  people  of  Otsego  were  threatening  to  march 
to  New  York,  and  there  was  some  actual  appre- 
hension of  "  an  appeal  to  arms,"  2  the  intensity 
of  public  feeling  may  be  imagined.  The  signing 
cance  of  these  events  as  regards  Jay  is,  that  for 
the  time  the  political  outrage  united  the  Feder- 
alists and  the  extreme  anti-Federalists,  who,  be- 
fore all  things,  were  lovers  of  liberty ;  and  so 
made  his  renomination  and  election  sure,  in 
spite  of  his  opinions.  On  July  14th  the  .anni- 
versary of  the  destruction  of  the  Bastile  was 
celebrated  by  the  Republicans  "  with  nearly  the 
same  ardor  and  sincerity  throughout  the  United 
States  as  the  4th."  3  On  that  day  at  a  large 
dinner  in  New  York  city  Jay  gave  the  toast : 
u  May  the  people  always  respect  themselves,  and 
remember  what  they  owe  to  posterity ; "  and  after 
he  retired  the  company  drank  :  "  John  Jay,  gov- 
ernor by  the  voice  of  the  people."  Also  among 
the  toasts  at  Mechanics'  Hall,  on  the  Fourth  of 

1  Jay's  Jay,  i.  293. 

2  N.  Y.  Journal,  July  13,  1792. 

3  Ibid.,  July  21,  1792. 


282  JOHN  JAY. 

July,  were  these  two,  in  curious  juxtaposition  : 
"  The  French  Revolution,"  and  "  The  Governor 
(of  right)  of  the  State  of  New  York."  * 

In  the  United  States  Supreme  Court  the  ques- 
tion of  the  conflicting  sovereignties  of  the  States 
and  the  nation  was  gradually  brought  to  an 
issue.  Several  suits  were  brought  by  individual 
States  against  citizens  of  other  States,  and  by 
individual  citizens  against  States,  but  the  great 
question  of  the  suability  of  a  State  remained 
unargued  till  the  case  of  Chisolm,  Executor,  v. 
The  State  of  Georgia  came  to  a  hearing.2  The 
State  refused  to  appear  except  to  demur  to  the 
jurisdiction  of  the  court.  The  chief  justice  in 
his  opinion,  which  was  in  writing,  began  by  as- 
serting that  the  States  had  never  possessed  an 
independent  sovereignty.  Before  the  Revolu- 
tion "all  the  people  of  the  country  were  sub- 
jects to  the  king  of  Great  Britain.  .  .  .  They 
were  in  strict  sense  fellow-subjects,  and  in  a 
variety  of  respects  one  people."  In  the  estab- 
lishment of  the  Constitution  "  we  see  the  peo- 
ple acting  as  sovereigns  of  the  whole  country ; 
and,  in  the  language  of  sovereignty,  establish- 
ing a  Constitution  by  which  it  was  their  will 
that  the  State  governments  should  be  bound, 
and  to  which  the  State  constitutions  should  be 
made  to  conform.  .  .  .  The  sovereignty  of  the 

1  N.  Y.  Journal,  July,  14,  1792.  2  2  Dall.  p.  415. 


CHIEF  JUSTICE   OF  THE   UNITED  STATES.     283 

nation  is  in  the  people  of  the  nation,  and  the 
residuary  sovereignty  of  each  State  is  in  the 
people  of  each  State."  As  one  State  may  sue 
another  State,  "  suability  and  State  sovereignty 
are  not  incompatible."  Cases  "  in  which  a  State 
shall  be  a  party  "  are  by  the  Constitution  within 
tne  jurisdiction  of  the  Supreme  Court.  "  Did  it 
mean  here  party-plaintiff?  If  that  only  were 
meant,  it  would  have  been  easy  to  find  words  to 
express  it."  The  court  accordingly  gave  judg- 
ment against  the  State  by  default.  The  legis- 
lature of  Georgia  passed  acts  condemning  to 
death  any  one  who  should  attempt  to  serve  the 
process  of  execution.  But  judgment  was  never 
executed,  for  the  next  year  an  amendment  to  the 
Constitution  was  passed  to  counteract  the  effect 
of  the  decision.  Jay's  logic,  however,  remained 
uncontroverted.  It  established  the  court  as  the 
supreme  interpreter  of  the  Constitution,  and  his 
words  were  long  cited  as  disproving  the  extreme 
theory  of  State  Eights.  The  importance  of  the 
decision  is  shown  by  the  fact  that  it  was  thought 
necessary  to  argue  that  it  was  of  no  authority 
"  to  determine  the  political  duty  of  the  citizen, 
in  a  crisis  like  that  of  1861." l  It  laid  down 
the  lines,  indeed,  that  Marshall  followed,  in  his 
famous  series  of  federal  decisions,  culminating 
in  McCulloch  v.  Maryland :  "  The  government 

1  Hard,  Theory  of  our  National  Existence,  p.  131. 


284  JOHN  JAY. 

proceeds  directly  from  the  people,  is  ordained 
and  established  in  the  name  of  the  people."  1 
"After  this  clear  and  authoritative  declaration 
of  national  supremacy,"  said  Judge  Cooley,  only 
last  year,  "  the  power  of  a  court  to  summon  a 
State  before  it,  at  the  suit  of  an  individual,  might 
be  taken  away  by  the  amendment  of  the  Con- 
stitution —  as  was  in  fact  done  —  without  impair- 
ing the  general  symmetry  of  the  federal  struct- 
ure, or  inflicting  upon  it  any  irremediable  injury. 
.  .  .  The  Union  could  scarcely  have  had  a  valu- 
able existence  had  it  been  judicially  determined 
that  powers  of  sovereignty  were  exclusively  in 
the  States  or  in  the  people  of  the  States  sever- 
ally. .  .  .  The  doctrine  of  an  indissoluble  Union, 
though  not  in  terms  declared,  is  nevertheless  in 
its  elements  at  least  contained  in  the  decision. 
The  qualified  sovereignty,  national  and  State, 
the  subordination  of  State  to  nation,  the  position 
of  the  citizen  as  at  once  a  necessary  component 
part  of  the  Federal  and  of  the  State  system,  are 
all  exhibited.  It  must  logically  follow  that  a 
nation,  as  a  sovereignty,  is  possessed  of  all  those 
powers  of  independent  action  and  self-protection, 
which  the  successors  of  Jay  subsequently  de- 
monstrated were  by  implication  conferred  upon 
it."2 

1  4  Wheat,  p.  316. 

2  Constitutional  History  of  the  United  States,  as  seen  in  the 
Development  of  American  Law,  1889,  p.  49. 


CHIEF  JUSTICE   OF  THE   UNITED  STATES.    285 

In  the  spring  of  1793,  before  chief  justice  Jay 
and  Judges  Griffin  and  Iredell,  at  Richmond, 
Patrick  Henry  made  his  famous  argument  in  the 
second  trial  of  Ware's  Executors  v.  Hylton,  on 
the  question  whether  British  creditors  could  re- 
cover against  Virginia  debtors  by  virtue  of  the 
treaty  of  peace,  in  spite  of  an  act  of  Virginia 
to  the  contrary.  Jay  told  Iredell  that  Patrick 
Henry,  as  he  stood  there  an  old  decrepit  man, 
was  "  the  greatest  of  orators."  As  he  spoke 
"  the  color  began  to  come  and  go  in  the  face  of 
the  chief  justice,  while  Iredell  sat  with  his 
mouth  and  eyes  stretched  open,  in  perfect  won- 
der." l  At  the  final  decision  Jay  was  not  pres- 
ent, though  doubtless  he  would  have  concurred 
in  the  judgment  of  the  court  in  favor  of  the 
creditors. 

The  news  of  the  capture  of  the  Bastile  was 
printed  in  the  papers  on  the  same  day  as  Wash- 
ington's Cabinet  nominations,  and  by  this  time 
the  eyes  of  all  the  world  were  fixed  on  the  rap- 
idly culminating  scenes  of  the  French  Revolu- 
tion. The  anti-Federalists,  or  Republicans,  who, 
in  their  opposition  to  a  centralized  government, 
had  fallen  back  on  doctrines  of  State  Rights,  and 
finally  on  the  new  theories  of  the  rights  of  man, 
were  in  full  sympathy  with  the  Paris  mob,  and 
were  forming  throughout  the  land  Democratic 
1  Historical  Mag.,  Nov.,  1873,  p.  275. 


286  JOHN  JAY. 

clubs,  on  the  model  of  the  notorious  Jacobin 
Club.  The  report  that  a  minister  was  on  his 
way  from  France  made  it  necessary  for  the  gov- 
ernment to  define  its  position  towards  the  new 
republic.  "  The  king  has  been  decapitated," 
wrote  Hamilton  to  Jay.  "  Out  of  this  will  arise 
a  regent,  acknowledged  and  supported  by  the 
powers  of  Europe  almost  universally;  in  ca- 
pacity to  act,  and  who  may  himself  send  an  am- 
bassador to  the  United  States.  Should  we  in 
such  case  receive  both  ?  If  we  receive  one  from 
the  republic  and  refuse  the  other,  shall  we  stand 
on  ground  perfectly  neutral  ?  "  And  the  same 
day  he  wrote  again :  "  Would  not  a  proclama- 
tion prohibiting  our  citizens  from  taking  com- 
missions on  either  side  be  proper?  Would  it 
not  be  well  that  it  should  include  a  declaration 
of  neutrality  ?  If  you  think  the  measure  pru- 
dent, could  you  draft  such  a  thing  as  you  would 
deem  proper  ?  I  wish  much  you  would."  1  Two 
days  later  Jay  answered  the  question  about  re- 
ceiving a  minister  concisely  but  in  conformity 
with  modern  international  usage  :  "  I  would  not 
receive  any  minister  from  a  regent  until  he  was 
regent  de  facto  ;  "  and  he  inclosed  a  draft  of  a 
proclamation.  "  It  is  hastily  drawn,"  he  added  ; 
"it  says  nothing  about  treaties;  it  speaks  of 
neutrality,  but  avoids  the  expression,  because 
1  April  19,  1793,  Jay's  Jay,  i.  298,  300. 


CHIEF  JUSTICE  OF  THE   UNITED  STATES.     287 

in  this  country  often  associated  with  others."  1 
This  was,  apparently,  the  first  draft  of  the  still 
more  concise  proclamation  issued  by  Washing- 
ton on  April  22d  ;  which  also  avoided  using  the 
word  "  neutrality."  "  The  murmurs  and  dis- 
gust which  this  measure  occasioned,"  it  has 
been  well  said,  "  evinced  its  necessity  and  wis- 
dom." The  reason  for  not  using  the  word  "  neu- 
trality "  was,  probably,  because  at  that  time  it 
was  popularly  taken  to  mean  "  non-intercourse," 
and  so  would  have  caused  confusion.2 

"  The  duty  and  interest  of  the  United  States," 
ran  the  President's  proclamation,  "  require  that 
they  should,  with  sincerity  and  good  faith,  adopt 
and  pursue  a  conduct  friendly  and  impartial  to- 
wards the  belligerent  powers.  I  have,  therefore, 
thought  fit  ...  to  exhort  and  warn  the  citizens 
of  the  United  States  carefully  to  avoid  all  acts 
and  proceedings  whatsoever,  which  may  in  any 
manner  tend  to  contravene  such  disposition." 
Very  necessary  was  such  a  declaration  when  the 
friends  of  France  were  doing  everything  that 
private  citizens  could  do  to  involve  the  country 
in  the  European  war,  in  which  they  could  see 
nothing  but  a  coalition  of  despotisms  against 
republicanism.  Events  moved  rapidly.  Genet, 
the  French  minister,  arrived  at  Charleston  on 

1  To  Alex.  Hamilton,  April  11,  1793,  Jay's  Jay,  i.  300. 

2  Historical  Mag.,  Feb.,  1871,  p.  129,  and  Ap.  p.  137,  n. 


288  JOHN  JAY. 

April  8th,  and  at  once  began  to  compromise 
the  neutrality  of  the  country  by  distributing 
naval  and  military  commissions,  fitting  out  pri- 
vateers in  American  ports  and  organizing  courts 
of  admiralty  under  the  various  French  consuls 
for  the  condemnation  of  prizes.  "  The  minister 
of  France,"  said  a  Philadelphia  newspaper,  sup- 
posed to  be  the  organ  of  Jefferson,  "  the  minis- 
ter of  France,  I  hope,  will  act  with  firmness  and 
spirit.  The  people  are  his  friends,  or  the  friends 
of  France,  and  he  will  have  nothing  to  appre- 
hend, for,  as  yet,  the  people  are  the  sovereign  of 
the  United  States."  -1  Emboldened  by  his  en- 
thusiastic reception,  the  minister  used  language 
of  the  gravest  indiscretion  ;  especially  on  one 
occasion,  when  the  government,  relying  on  his 
word,  tried  in  vain  to  prevent  the  sailing  of  a 
privateer.  Jay  and  Rufus  King  then  thought  it 
necessary  to  publish  their  testimony  to  his  words  : 
"  A  report  having  reached  this  city  [New  York] 
from  Philadelphia,  that  Mr.  Genet,  the  French 
minister,  had  said  he  would  appeal  to  the  people 
from  certain  decisions  of  the  President,  we  were 
asked  on  our  return  from  that  place  whether  he 
had  made  such  a  declaration ;  we  answered  that 
he  had,  and  we  also  mentioned  it  to  others,  au- 
thorizing them  to  say  that  we  had  so  informed 
them."  1  This  statement  provoked  the  unmeas- 
1  Jay's  Jay,  1.  303.  2  Ibid.,  i.  304. 


CHIEF  JUSTICE   OF  THE  UNITED  STATES.     289 

ured  indignation  of  the  Republican  press  :  "  Is 
the  President,"  asked  one  paper,  "  a  consecrated 
character,  that  an  appeal  from  his  decisions 
must  be  considered  criminal  ?  Or  are  the  people 
in  such  a  state  of  degradation,  that  to  speak 
of  consulting  them  is  an  offense  as  great  as  if 
America  groaned  under  a  dominion  equally  ty- 
rannical with  the  old  monarchy  of  France  ?  "  l 

Washington's  proclamation  would  have  been 
a  dead  letter,  signifying  nothing,  unless  its  prin- 
ciples had  been  sustained  by  the  courts.  It  fell 
to  Jay  to  place  it  upon  a  legal  basis,  and  to  es- 
tablish what  Sir  Henry  Maine  recently  asserted 
to  be  the  distinctively  American  doctrine :  that 
"  International  has  precedence  both  of  Federal 
and  of  Municipal  Law,  unless  in  the  exceptional 
case  where  Federal  Law  has  deliberately  de- 
parted from  it."  2  In  his  charge  to  the  grand 
jury  at  Richmond,  Virginia,  May  22,  1783,  the 
chief  justice  said :  "  You  will  recollect  that  the 
laws  of  nations  make  part  of  the  laws  of  this, 
and  of  every  other  civilized  nation.  They  con- 
sist of  those  rules  for  regulating  the  conduct  of 
nations  towards  each  other,  which,  resulting  from 
right  reason,  receive  their  obligations  from  that 
principle  and  from  general  assent  and  practice. 
To  this  head  also  belong  those  rules  or  laws 

1  Jay's  Jay,  i.  305. 

2  Maine,  International  Law,  p.  37. 


290  JOHN  JAY. 

which,  by  agreement,  become  established  be- 
tween nations.  .  .  .  We  are  now  a  nation,  and 
it  equally  becomes  us  to  perform  our  duties  as 
to  assert  our  rights  ; "  and  he  concluded  accord- 
ingly that  "  the  United  States  are  in  a  state  of 
neutrality  relative  to  all  the  powers  at  war ;  .  .  . 
that,  therefore,  they  who  commit,  aid,  or  abet 
hostilities  against  those  powers,  or  either  of  them, 
offend  against  the  laws  of  the  United  States, 
and  ought  to  be  punished." 

In  accordance  with  this  charge,  one  Gideon 
Henfield,  a  citizen  of  the  United  States,  who 
had  served  as  officer  on  a  French  privateer 
which  brought  a  British  vessel  as  a  prize  into 
Philadelphia,  was  indicted,  though  no  jury  could 
be  found  to  convict  him.  The  importance  of 
the  charge,  however,  lay  in  the  fact  that,  in- 
dependent of  statutes,  and  in  the  face  of  vio- 
lent popular  prejudice,  it  declared  violations  of 
neutrality  to  be  criminally  indictable  at  com- 
mon law,  and  that,  with  singular  prescience,  it 
defined  the  duties  of  neutrals  in  almost  the  ex- 
act words  of  the  rules  which,  by  desire  of  the 
United  States,  were  afterwards  included  in  the 
treaty  of  Washington.  The  proclamation  of  the 
President  was  implicitly  held  to  be  simply  de- 
claratory of  existing  law.  This  position  was 
sound,  though  criminal  jurisdiction  was  assumed 
by  the  Supreme  Court  at  that  time  rather  of 


CHIEF  JUSTICE   OF  THE  UNITED  STATES.    291 

necessity  than  of  right ;  but  it  was  a  position 
which  no  one  would  dare  to  take  without  a  con- 
fident knowledge  of  legal  principles.  Interna- 
tional law  is  part  of  the  common  law ; l  by  in- 
ternational law  neutrality  is  presumed  to  exist 
till  a  tacit  or  public  declaration  of  war ;  and  a 
neutral,  except  so  far  as  stipulated  by  treaty, 
must  grant  aid,  neither  by  arms  nor  men,  to 
a  belligerent.2  By  the  treaty  with  France  no 
such  stipulation  is  expressed,  as  even  Jefferson 
notified  Morris  at  Paris.3  Finally,  in  becoming 
a  nation,  the  United  States  became  amenable 
"  to  that  system  of  rules  which  reason,  morality, 
and  custom  had  established  among  the  civilized 
nations  of  Europe  as  their  public  law  ;  "  4  these 
words  of  Chancellor  Kent,  which  open  his  "  Com- 
mentaries," are  little  else  than  a  condensation  of 
Jay's  charge  at  Richmond.  To  a  certain  extent, 
the  policy  then  laid  down  for  the  United  States, 
was  a  departure  from  that  adopted  in  the  treaties 
made  during  the  Revolution,  which  contemplated 
an  active  neutrality,  so  to  speak,  on  behalf  of 
the  favored  nation  when  at  war.  Such  a  policy, 
if  continued,  might,  indeed  must,  have  involved 
the  country  in  European  quarrels  with  which  it 

1  Kent,  Commentaries,  13th  ed.  i.  1,  note  a. 

2  Levi,  International  Law,  p.  294. 

3  August  6,  1793,  Waite,  State  Papers,  i.  140. 

4  Kent,  Commentaries,  i.  1. 


292  JOHN  JAY. 

had  no  concern.  In  the  Civil  War  the  Alabama 
taught  us  the  practical  distinction  between  ac- 
tive and  real  neutrality ;  and  the  wisdom  of 
Washington  and  Jay  was  never  more  clearly 
vindicated  than  by  their  most  virulent  critic  of 
recent  days,  who  declared  that  "  France  was  the 
first  victim,  and  Poland,  and  Ireland,  and  Hun- 
gary followed,  in  the  sad  procession." 1  The 
charge  was  printed  by  the  government  for  dis- 
tribution abroad,  in  order  to  explain  its  posi- 
tion ;  while  the  Democrats,  with  at  least  un- 
conscious misapprehension,  demanded  loudly, 
"  What  law  had  been  offended,  and  under  what 
was  the  indictment  supported  ?  .  .  .  Were  they 
to  be  punished  for  violating  a  proclamation 
which  had  not  been  published  when  the  offense 
was  committed,  if,  indeed,  it  could  be  termed  an 
offense  to  engage  with  France,  combating  for 
liberty  against  the  combined  despots  of  Eu- 
rope?"2 

Similarly,  when  the  case  of  the  sloop  Betsey 
came  up  for  decision,  in  which  the  owners,  Swed- 
ish neutrals,  claimed  restitution  in  the  District 
Court  after  the  vessel  had  been  condemned  by  a 
French  prize  court,  the  chief  justice  held,  "  that 
no  foreign  power  can  of  right  institute,  or  erect, 
any  court  of  judicature  of  any  kind  within  the 

1  Dawson,  Hist.  Mag.,  Feb.  1871,  p.  139. 

2  Marshall,  Life  of  Washington,  ii.  273, 274. 


CHIEF  JUSTICE   OF  THE    UNITED  STATES.     293 

jurisdiction  of  the  United  States,  but  such  only 
as  may  be  ...  in  pursuance  of  treaties.  It  is 
therefore  decreed  and  adjudged  that  the  admi- 
ralty jurisdiction,  which  has  been  exercised  in 
the  United  States  by  the  consuls  of  France,  not 
being  so  warranted,  is  not  of  right."  1 

This  April  session  was  the  last  which  Jay  at- 
tended as  chief  justice,  though  it  was  not  till 
1795  that  he  resigned.  The  causes  brought  be- 
fore him  were,  perhaps,  not  of  a  character  fully 
to  test  his  professional  ability,  though  Wharton 
speaks  of  his  "  sound,  wary,  experienced  judg- 
ment," 2  and  Story  describes  him  as  "  equally 
distinguished  as  a  revolutionary  statesman  and 
a  general  jurist."  3  So  far,  however,  as  circum- 
stances permitted,  no  opportunity  was  lost  of 
establishing  the  authority  of  the  court,  and  pro- 
moting the  welfare  of  the  country. 

1  Glass  et  al  v.  The  Sloop  Betsey  et  al,  3  Ball.  pp.  6-15. 

2  Wharton,  State  Trials,  p.  88,  note. 

3  Story,  Comm.  on  the  Constitution,  i.  §  216. 


CHAPTER  XL 

SPECIAL   ENVOY   TO    GREAT   BRITAIN. 

1794,  1795. 

THE  daily  increasing  "  love  -  frenzy  for 
France,"  and  the  intemperate  language  of  the 
Democratic  press,  naturally  emphasized  in  Eng- 
land that  reaction  against  America  which  set  in 
with  the  treaty  of  peace.  On  the  other  hand, 
the  retention  of  the  frontier  posts  in  violation  of 
that  treaty  was  a  thorn  in  the  side  of  the  young 
Republic.  In  the  course  of  the  war  England 
had  adopted,  by  successive  Orders  in  Council,  a 
policy  ruinous  to  the  commerce  of  neutral  na- 
tions, especially  of  the  United  States.  In  the 
admiralty  courts  of  the  various  British  West 
India  islands  hundreds  of  ships  from  New  Eng- 
land were  seized  and  condemned,  for  carrying 
French  produce  or  bearing  cargoes  of  provisions 
chartered  to  French  ports.  The  New  England 
fishermen  and  shipowners  were  vociferous  for 
war,  and  the  Democratic  clubs  denounced  every 
British  insult  and  celebrated  every  French  vic- 
tory. On  March  26,  1794,  an  embargo  against 


SPECIAL   ENVOY  TO   GREAT  BRITAIN.     295 

British  ships  was  proclaimed  for  thirty  days,  and 
then  extended  for  thirty  day.s  longer.  The  day 
after  the  embargo  was  laid,  Dayton,  of  New  Jer- 
sey, moved  in  Congress  to  sequester  all  moneys 
due  to  British  creditors,  and  apply  it  towards 
indemnifying  shipowners  for  losses  incurred 
through  the  Orders  in  Council;  and  on  April 
21st  the  Republicans  moved  a  resolution  to  sus- 
pend all  commercial  intercourse  with  Great 
Britain  till  the  western  posts  should  be  given  up, 
and  indemnity  be  paid  for  injuries  to  American 
commerce  in  violation  of  the  rights  of  neutrals. 

The  passage  of  such  an  act  meant  war ;  and 
for  war  the  United  States  was  never  more 
unprepared.  The  resources  of  the  people  had 
been  taxed  in  recovering  from  the  ruin  brought 
by  the  Revolution  and  in  organizing  a  govern- 
ment. In  spite  of  Jay's  recommendation  the 
Confederation  had  left  the  country  without  a 
navy,  and  there  was  no  army.  The  veterans  of 
the  Revolution  in  their  eastern  homes,  or  in  the 
near  western  colonies  had  been  pauperized  by 
the  depreciation  -of  the  currency,  and  were 
among  the  discontented  rioters  who  rebelled 
under  Shays  in  Massachusetts  and  had  threat- 
ened Congress  at  Philadelphia.  Jealousy  of 
military  influence  had  prevented  their  organiza- 
tion into  anything  like  the  nucleus  of  an  army, 
and  jealousy  of  federal  power  had  retarded  the 


296  JOHN  JAY. 

formation  of  a  new  one.  The  union  of  the 
States  was  too  new  to  bear  the  strain  of  a  war 
which  to  half  the  people  would  be  repugnant, 
and  the  burden  of  which  would  fall  chiefly  on  a 
few  States.  One  policy  only  was  open  to  a  wise 
government,  and  that  was  the  policy  of  Wash- 
ington :  "  Peace,"  he  declared,  "  ought  to  be 
pursued  with  unremitted  zeal  before  the  last 
resource,  which  has  so  often  been  the  scourge  of 
nations,  and  cannot  fail  to  check  the  advancing 
prosperity  of  the  United  States,  is  contem- 
plated." i 

Peace  could  be  secured  only  by  immediate 
negotiation  and  at  least  a  temporary  settlement 
of  the  causes  of  neutral  irritation,  and  for  such 
a  task  the  ministers  at  London  and  Washing- 
ton were  incompetent  or  unsuited.  Mr.  Pinck- 
ney,  the  -American  minister  at  London,  was, 
according  to  John  Adams,  a  man  of  prejudices 
and  strongly  pro-Gallican,  while  Hammond,  the 
English  minister  at  Washington,  had  little  pru- 
dence or  moderation.2  In  this  crisis  Washing- 
ton decided  to  send  to  England  a  special  envoy. 
Hamilton  was  his  first  choice,  but  Hamilton 
had  excited  bitter  enmities ;  Monroe  warned  the 
President  against  his  nomination  so  soon  as  it 

1  Washington's  Works,  x.  404. 

2  To  Christopher   Gore,    March  5,  1794,   Works  of  Fisher 
Ames,  i.  137. 


SPECIAL  ENVOY  TO   GREAT  BRITAIN.     297 

was  suggested,  and  it  would  doubtless  have 
failed  of  confirmation  by  the  Senate.1  Hamilton 
then  himself  proposed  the  name  of  Jay  :  "  Of  the 
persons  whom  you  would  deem  free  from  any 
constitutional  objections,  Mr.  Jay  is  the  only 
man  in  whose  qualifications  for  success  there 
would  be  thorough  confidence,  and  him  alone 
it  would  be  advisable  to  send."  2  Two  days 
later  Jay  was  nominated  ;  and  after  three  days 
of  violent  debate  was  confirmed  by  the  Senate. 
"You  cannot  imagine,"  wrote  Adams  to  his 
wife  the  day  of  the  final  vote,  "  what  horror 
some  persons  are  in,  lest  peace  should  continue. 
The  prospect  of  peace  throws  them  into  dis- 
tress. .  .  .  The  opposition  to  Mr.  Jay  has  been 
quickened  by  motives  which  always  influence 
everything  in  an  elective  government.  ...  If  Jay 
should  succeed,  it  will  recommend  him  to  the 
choice  of  the  people  for  President,  as  soon  as 
a  vacancy  shall  happen.  This  will  weaken  the 
hopes  of  the  Southern  States  for  Jefferson.  This 
I  believe  to  be  the  secret  motive  of  the  oppo- 
sition to  him,  though  other  things  were  alleged 
as  ostensible  reasons;  such  as  his  monarchical 
principles,  his  indifference  about  the  navigation 
of  the  Mississippi,  his  attachment  to  England, 

1  Madison's  Works,  ii.  11. 

2  To  Washington,  April  14,  1794,  Hamilton's   Works,  iv. 
536. 


298  JOHN  JAY. 

his  aversion  to  France,  none  of  which  are  well 
founded,  and  his  holding  the  office  of  chief  jus- 
tice." ! 

This  month  Jay  was  holding  court  in  Phila- 
delphia. On  April  9th  he  wrote  to  his  wife: 
"  Yesterday  I  dined  with  the  President.  The 
question  of  war  or  peace  seems  to  be  as  much 
in  suspense  here  as  in  New  York  when  I  left 
you."  2  The  next  day  he  wrote  again  :  "  Peace 
or  war  appears  to  me  a  question  which  cannot 
be  solved.  Unless  things  should  take  a  turn  in 
the  mean  time,  I  think  it  will  be  best  on  my 
return  to  push  our  affairs  at  Bedford  briskly, 
[where  he  proposed  building  a  country-house]. 
There  is  much  irritation  and  agitation  in  this 
town  and  in  Congress.  Great  Britain  has  acted 
unwisely  and  unjustly,  and  there  is  some  danger 
of  our  acting  intemperately."  3  When  he  heard 
that  he  might  be  sent  to  England,  the  question 
presented  itself  to  Jay's  conscientious  mind 
merely  as  one  of  duty.  He  was  not  for  a  mo- 
ment misled  as  to  the  effect  which  his  mission, 
however  successful  diplomatically,  was  almost 
sure  to  have  on  his  reputation.  The  learned 
Dr.  Carnahan,  who  became  president  of  Prince- 
ton College  in  1823,  in  his  lectures  on  moral 
philosophy  used  to  quote  a  conversation  between 

1  To  Mrs.  Adams,  April  19,  1794,  Adams's  Letters,  ii.  156. 

2  Jay  MSS.  3  Ibid. 


SPECIAL   ENVOY  TO   GREAT  BRITAIN.     299 

Jay  and  some  friends  at  this  time  that  was  told 
him  by  an  ear-witness,  as  a  striking  instance  of 
courageous  patriotism :  "  Before  the  appoint- 
ment was  made,  the  subject  was  spoken  of  in 
the  presence  of  Jay,  and  Jay  remarked  that 
such  were  the  prejudices  of  the  American  peo- 
ple, that  no  man  could  form  a  treaty  with 
Great  Britain,  however  advantageous  it  might 
be  to  the  country,  who  would  not  by  his  agency 
render  himself  so  unpopular  and  odious  as  to 
blast  all  hope  of  political  preferment.  It  was 
suggested  to  Mr.  Jay  that  he  was  the  person  to 
whom  this  odious  office  was  likely  to  be  offered. 
4  Well,'  replied  Mr.  Jay,  4  if  Washington  shall 
think  fit  to  call  me  to  perform  this  service,  I 
will  go  and  perform  it  to  the  best  of  my  abili- 
ties, foreseeing  as  I  do  the  consequences  to  my 
personal  popularity.  The  good  of  my  country  I 
believe  demands  the  sacrifice,  and  I  am  ready  to 
make  it.'  "  l  In  a  similar  spirit  he  wrote  to  his 
wife  April  15th :  "  The  object  is  so  interesting 
to  our  country,  and  the  combination  of  circum- 
stances such,  that  I  find  myself  in  a  dilemma 
between  personal  and  public  considerations." 
And  again :  "  Nothing  can  be  more  distant  from 
every  wish  on  my  own  account.  .  .  .  This  is  not 

1  Extract  from  Lecture  VII. ,  communicated  from  the  origi- 
nal MSS.  by  the  kindness  of  Mr.  McDonald,  a  grandson  of  Dr. 
Carnahan. 


300  JOHN  JAY. 

of  my  seeking ;  on  the  contrary  I  regard  it  as  a 
measure  not  to  be  desired,  but  to  be  submitted 
to."  1  His  acceptance  he  explained  a  few  days 
later :  "  No  appointment  ever  operated  more 
unpleasantly  upon  me  ;  but  the  public  consider- 
ations which  were  urged,  and  the  manner  in 
which  it  was  pressed,  strongly  impressed  me 
with  a  conviction  that  to  refuse  it  would  be  to 
desert  my  duty  for  the  sake  of  my  ease  and 
domestic  concerns  and  comforts."  2 

On  May  12th  Jay  set  sail  in  the  ship  OAzo, 
with  his  son  Peter  Augustus,  and  with  John 
Trumbull,  as  secretary.  On  June  8th  he  landed 
at  Falmouth.  At  the  moment  of  his  departure 
the  New  York  Society,  in  an  address  to  the  peo- 
ple, began  to  fan  the  embers  of  that  partisan 
virulence  which  was  to  flame  into  frenzy  on  his 
return.  "  We  most  firmly  believe,"  it  ran,  "  that 
he  who  is  an  enemy  to  the  French  Revolution 
cannot  be  a  firm  republican,  and,  therefore, 
though  he  may  be  a  good  citizen  in  other  re- 
spects, ought  not  to  be  intrusted  with  the  guid- 
ance of  any  part  of  the  machine  of  govern- 
ment." 

"  The  passage  across  the  Atlantic  was  pleas- 
ant," wrote  Trumbull  in  his  "  Autobiography," 
"  and  on  the  1st  of  June  we  must  have  been 

1  Jay's  Jay,  i.  310. 

2  To  Mrs.  Jay,  April  19,  Jay's  Jay,  I  311. 


SPECIAL  ENVOY  TO   GREAT  BRITAIN.    301 

near,  almost  within  hearing,  of  the  decisive  naval 
battle  which  was  fought  on  that  day,  between 
the  British  and  the  French  fleet;  for  on  our 
arrival  at  Falmouth,  a  few  days  after,  we  found 
there  a  sloop  of  war  just  arrived  with  despatches 
from  Lord  Howe,  .  .  .  and  we  met  the  note  of 
triumph  at  Bath,  on  our  way  to  London."1 
There,  soon  after  his  arrival,  Jay  was  introduced 
to  the  cabinet  ministers  at  dinner  at  Lord  Gren- 
ville's,  and  a  few  days  later  he  dined  with  Lord 
Chancellor  Loughborough  and  Pitt.2 

The  complaints  to  be  adjusted  between  the 
two  countries  were  numerous  and  complicated. 
Great  Britain,  on  the  one  hand,  had  retained 
the  western  military  posts  in  violation  of  the 
treaty  of  peace,  and  had  made  no  compensation 
for  the  negro  slaves  carried  away  by  her  officers  ; 
on  the  other  hand,  several  of  the  States  had  pre- 
vented the  collection  of  debts  to  English  mer- 
chants contracted  before  the  Revolution.  The 
boundaries  of  the  United  States  on  the  west  and 
northeast  were  unsettled.  Great  Britain,  finally, 
complained  of  damage  to  her  commerce  by 
French  privateers  fitted  out  in  American  ports  ; 
while  the  United  States  complained  of  similar 
damage  through  irregular  captures  by  British 
cruisers.  To  avoid  interminable  discussion  and 

1  Autobiography  of  John  Trumbull,  p.  174. 

2  To  Alex.  Hamilton,  July  11,  Jay's  Jay.il  228. 


302  JOHN  JAY. 

hasten  an  accommodation,  Jay,  at  his  first  meet- 
ing with  Lord  Grenville,  the  Secretary  for  For- 
eign Affairs,  suggested  that  they  should  at  first 
avoid  written  communications,  and  merely  meet 
and  converse  informally,  "  until  there  should  ap- 
pear a  probability  of  coming  to  some  amicable 
mutual  understanding  ;  "  that  they  should  then 
exchange  preliminary  papers,  which  still  should 
not  be  binding,  and  that  in  all  this  they  should 
not  employ  secretaries  or  copyists,  in  order  to 
escape  the  influence  of  public  opinion  and  na- 
tional feeling  as  much  as  possible.  They  should 
always  bear  in  mind,  said  Jay,  "  that  this  was 
not  a  trial  of  diplomatic  fencing,  but  a  solemn 
question  of  peace  or  war  between  two  peoples, 
in  whose  veins  flowed  the  blood  of  a  common 
ancestry,  and  on  whose  continued  good  under- 
standing might  perhaps  depend  the  future  free- 
dom and  happiness  of  the  human  race."  On 
this  broad  statesmanlike  basis  was  the  negotia- 
tion conducted,  and  the  secretaries  had  a  holi- 
day till  the  treaty  was  almost  ready  for  signing.1 
"  I  will  endeavour  to  accommodate  rather  than 
dispute,"  were  Jay's  words  to  Hamilton.2 

On  August  5th  Jay  was  able  to  write  to 
Washington  :  "  Our  prospects  become  more  and 
more  promising  as  we  advance  in  the  business. 

1  Autobiography  of  John  Trumbull,  pp.  176,  177. 

2  July  11,  1794,  Jay's  Jay,  ii.  228. 


SPECIAL  ENVOY    TO   GREAT  BRITAIN.      303 

...  A  treaty  of  commerce  is  on  the  carpet.  .  .  . 
The  king  observed  to  me  the  other  day,  '  Well, 
Sir,  I  imagine  you  begin  to  see  that  your  mis- 
sion will  probably  be  successful/  4 1  am  happy, 
may  it  please  your  Majesty,  to  find  that  you  en- 
tertain that  idea.'  '  Well,  but  don't  you  per- 
ceive that  it  is  like  to  be  so  ?'  *  There  are  some 
recent  circumstances  (the  answer  to  my  repre- 
sentation, etc.),  which  induce  me  to  flatter  my- 
self that  it  will  be  so.'  He  nodded  with  a  smile, 
signifying  that  it  was  to  those  circumstances 
that  he  alluded."  l  "  If  I  should  be  able  to  con- 
clude the  business  on  admissible  terms,"  Jay 
wrote  to  Hamilton,  the  next  month,  "  I  shall  do 
it  and  risque  consequences,  rather  than,  by  the 
delay  of  waiting  for  .  .  .  opinions  and  instruc- 
tions, hazard  a  change  in  the  disposition  of  this 
court."  2 

On  November  19th  the  treaty  was  signed : 
"  Further  concessions  on  the  part  of  Great  Brit- 
ain," wrote  Jay  to  Oliver  Ellsworth  on  the  same 
day,  "  cannot  in  my  opinion  be  obtained.  .  .  . 
The  minister  flatters  himself  that  this  treaty  will 
be  very  acceptable  to  our  country,  and  that  some 
of  the  articles  in  it  will  be  received  as  unequivo- 
cal proofs  of  good  will.  We  have  industriously 
united  our  efforts  to  remove  difficulties,  and  few 

1  Jay's  Jay,  ii.  220. 

2  To  Alex.  Hamilton,  Sept.  11,  1794,  Jay  MSS. 


304  JOHN  JAY. 

men  would  have  persevered  in  such  a  dry,  per- 
plexing business,  with  so  much  patience  and 
temper  as  he  has  done."  1  A  copy  of  the  treaty 
was  at  once  dispatched  to  Congress  by  an  Amer- 
ican sea  captain  then  in  London,  David  Blaney ; 
but  wind  and  wave  delayed  its  arrival  till  the 
session  was  over.  "  The  winds  blue  continually 
from  the  westward,"  is  Blaney 's  own  account  of 
the  voyage,  "  from  the  time  the  ship  left  Eng- 
land until  we  came  on  the  course  of  America. 
...  I  took  a  small  flask  of  rum"  [an  item,  by 
the  way,  that  the  Secretary  of  the  Treasury 
wished  afterwards  to  have  explained],  "to  en- 
courage the  sailors  to  keep  a  better  watch,  and 
pay  attention  to  the  ship,  and  promised  them  all 
small  rewards  if  the  ship  arrived  at  such  a  time ; 
but  we  could  not  alter  the  contrary  winds.  .  .  . 
I  mentioned  to  you  .  .  .  the  French  cruser  board- 
ing us,  and  making  mention  of  the  treaty  signed 
by  you,  he  serch'd  every  part  of  the  ship ;  but 
such  care  was  taken  of  the  treaty  it  was  impossi- 
ble for  it  to  have  been  discovered.  ...  I  landed 
at  Norfolk  at  ten  o'clock  at  night,  hired  horses 
and  made  all  the  despatch  I  could  to  reach 
Philadelphia ;  my  first  horse  founder'd  after 
getting  to  Richmond,  which  I  did  in  one  day 
and  part  the  night.  ...  In  seven  days  from 
the  time  I  landed  in  Norfolk  I  delivered  the  de- 
1  Jay's  Jay,  ii.  235. 


SPECIAL  ENVOY  TO   GREAT  BRITAIN.     305 

spatches  to  E.  Randolph,  Esq. ;  .when  I  reach'd 
Philadelphia  my  hand  as  well  as  feet  was  f  ros'd. 
.  .  .  Unfortunately  the  Senate  had  rose  as  well 
as  Congress  three  days  before  I  reach'd  the 
Capital."1 

The  main  points  that  Jay  had  been  instructed 
to  gain  were  compensation  for  negroes,  surren- 
der of  the  posts,  and  compensation  for  spolia- 
tions ;  in  addition,  a  commercial  treaty  was  de- 
sired. When  Secretary  for  Foreign  Affairs,  Jay 
had  argued  that  the  negroes,  some  three  thou- 
sand in  number,  who,  at  the  time  of  the  evacu- 
ation, were  within  the  British  lines,  relying  on 
proclamations  that  offered  freedom,  and  who  fol- 
lowed the  troops  to  England,  came  within  that 
clause  of  the  treaty  of  peace,  which  provided  that 
the  army  should  be  withdrawn  without  "  carry- 
ing away  any  negroes  or  other  property."  2  Lord 
Grenville,  however,  insisted  upon  refusing  any 
compensation.  Once  within  the  British  lines, 
he  said,  slaves  were  free  for  good  and  all,  and 
could  no  longer  be  regarded  as  property  for 
which  compensation  could  be  claimed ;  and  these 
reasons  must  have  appealed  strongly  to  Jay's 
anti-slavery  convictions.  From  any  point  of 
view  the  matter  was  too  insignificant  to  wreck 
the  treaty  upon  it,  and  Jay  waived  the  claim. 

1  From  David  Blaney,  Sept.  20,  1795,  Jay  MSS. 

2  Secret  Journals,  iv.  185-287. 


306  JOHN  JAY. 

As  to  the  western  posts,  it  was  agreed  that 
they  should  be  surrendered  by  June  12,  1796. 
But  compensation  for  the  detention  was  denied 
on  the  ground,  that  it  was  due  to  the  breach  of 
the  treaty  by  the  United  States  in  permitting 
the  States  to  prevent  the  recovery  of  British 
debts. 

Where  the  collection  of  such  bonafide  debts 
incurred  before  the  Revolution  had  been  barred, 
or  their  value  impaired  by  "  legal  impediments  " 
since  the  peace,  it  was  provided  that  "  full  and 
complete  compensation  "  should  be  made  by  the 
United  States,  to  be  ascertained  by  a  board  of 
five  commissioners  to  meet,  first,  at  Philadelphia. 
Similarly,  the  British  government  agreed  to  make 
"  full  and  complete  compensation  "  to  American 
citizens  for  losses  sustained  "  by  reason  of  irreg- 
ular or  illegal  captures  or  condemnations  under 
colour  of  authority  or  commissions  from  His 
Majesty,"  wherever  "  adequate  compensation " 
cannot  be  had  at  law ;  the  damages  to  be  ascer- 
tained by  a  board  of  five  commissioners  to  sit 
at  London.  These  claims  should  be  decided 
"  according  to  the  merits  of  the  several  cases, 
and  to  justice,  equity,  and  the  law  of  nations." 
The  same  commissioners  were  also  to  pass  on 
claims  of  British  subjects  for  losses  by  captures 
within  the  jurisdiction  of  the  United  States, 
which  agreed  to  make  compensation  accordingly. 


SPECIAL  ENVOY  TO   GREAT  BRITAIN.      307 

It  must  have  been  a  delicate  matter  to  obtain 
such  a  concession  from  Great  Britain,  for  it 
practically  amounted  to  an  admission  that  the 
Orders  in  Council  were  in  violation  of  neutrality, 
irregular  and  illegal,  though  the  language  was 
skillfully  adapted  to  avoid  wounding  English 
susceptibilities.  Under  this  clause  American 
merchants  received  $10,345,000.  Jay  wrote  to 
Pickering :  "  Perfect  justice  to  all  parties  is  the 
object  of  both  the  articles  (vi.,  vii.),  and  the 
commissioners  are  empowered  to  do  it,  in  terms 
as  explicit  and  comprehensive  as  the  English 
language  affords."  l 

The  disputed  questions  of  boundaries,  arising 
from  the  construction  of  the  treaty  of  peace, 
were  referred  to  joint  commissioners :  properly 
enough,  as  the  confusion  was  due  to  ignorance 
of  the  geography  of  the  Northwest. 

British  and  American  citizens  holding  lands 
at  the  time  respectively  in  the  United  States  and 
in  any  of  the  possessions  of  Great  Britain  were 
secured  in  their  rights ;  a  clause  much  objected 
to  in  America,  but  which  was  obviously  just.  A 
still  more  important  provision  followed,  a  nov- 
elty in  international  diplomacy,  and  a  distinct 
advance  in  civilization :  that  war  between  the 
two  countries  should  never  be  made  the  pretext 
for  confiscation  of  debts  or  annulment  of  con- 
1  October  14,  1795,  Jay  MSS. 


308  JOHN  JAY. 

tracts  between  individuals.  In  the  War  of  1812 
the  United  States  happened  for  the  moment  to 
be  the  creditor  nation,  and  the  millions  which 
this  provision  saved  to  her  citizens  it  would  be 
difficult  to  estimate. 

"  The  commercial  part  of  the  treaty,"  wrote 
Jay  to  Washington,  "  may  be  terminated  at  the 
expiration  of  two  years  after  the  war,  and  in  the 
mean  time  a  state  of  things  more  auspicious  to 
negotiation  will  probably  arise,  especially  if  the 
next  session  of  Congress  should  not  interpose 
fresh  obstacles."  l  It  was  the  commercial  arti- 
cles which  excited  the  most  intense  hostility  in 
America ;  and  one  article  was  very  properly  re- 
jected. But  it  was  apparently  conveniently  for- 
gotten at  the  time,  that  there  was  then  no  treaty 
of  commerce  at  all  with  England,  that  England, 
according  to  the  economical  notions  of  the  day, 
had  little  to  gain  and  much  to  lose  by  any  such 
treaty,  and  that  what  privileges  she  did  allow 
were,  as  Lord  Grenville  may  well  have  thought, 
practically  gratuitous.  As  it  was,  reciprocal 
freedom  of  commerce  was  established  between 
the  United  States  on  the  one  side  and  British 
North  America  and  Great  Britain  on  the  other ; 
American  vessels  were  admitted  to  trade  between 
American  ports  and  the  East  Indies,  with  cer- 
tain restrictions  as  to  exportation  in  time  of 
1  September  3,  1795,  Jay  MSS. 


SPECIAL   ENVOY   TO   GREAT  BRITAIN.      309 

war ;  and  American  vessels  of  not  over  seventy 
tons'  burden  were  admitted  to  carry  to  the  Brit- 
ish West  Indies  goods  of  American  growth  or 
manufacture,  and  to  export  to  American  ports 
only  West  Indian  products,  on  condition  that 
"  the  United  States  will  prohibit  and  restrain 
the  carrying  away  any  molasses,  sugar,  coffee, 
cocoa,  or  cotton,  in  American  vessels,  either  from 
his  Majesty's  Islands  or  the  United  States  to 
any  part  of  the  world  except  the  United  States, 
reasonable  sea-stores  excepted."  It  was  this  lat- 
ter clause  that  was  so  bitterly  condemned.  The 
explanation  of  it,  however,  is  clear.  The  par- 
ticular articles  mentioned  were  supposed  to  be 
peculiarly  the  products  of  the  West  Indies,  and 
it  was  unsuspected  by  Jay  that  cotton  was  to 
be  one  of  the  great  staples  of  export  from  this 
country.  Such  lack  of  foresight  was  not  sur- 
prising, since,  only  the  previous  year,  1794, 
when  an  American  ship  entered  Liverpool  with 
eight  bags  of  cotton  fibre  as  part  of  her  cargo, 
it  was  confiscated  as  an  unlawful  importation, 
"on  the  assumption  that  so  large  a  quantity 
could  not  have  been  the  produce  of  the  United 
States."  l  Moreover,  it*  seems  that  it  was  but  a 
few  years  earlier  that  the  cultivation  of  cotton 
had  been  attempted  at  all,  for  "  a  member  from 
South  Carolina  observed,  in  the  House  of  Rep- 
1  The  First  Century  of  the  Republic,  N.  Y.  1876,  p.  163. 


310  JOHN  JAY. 

resentatives  in  '89,  that  the  people  of  the  South- 
ern States  intended  to  cultivate  cotton,  and  4  if 
good  seed  could  be  procured,  he  believed  they 
might  succeed.'  " l 

The  remaining  articles  of  the  treaty  dealt 
with  the  conduct  to  be  observed  by  either  nation 
when  the  other  was  at  war.  It  was  agreed  that 
when  a  neutral  vessel  was  captured  on  suspicion 
of  carrying  enemy's  goods,  it  should  be  tried 
speedily  at  the  nearest  port,  and  only  the  en- 
emy's goods  should  be  confiscated.  "  Contra- 
band "  was  defined.  Privateers  were  required 
to  give  security  not  to  injure  the  commerce  of 
the  neutral.  Acts  of  reprisal  for  alleged  in- 
juries should  not  be  permitted  until  complaint 
made  and  compensation  refused.  Mutual  ef- 
forts should  be  made  to  abolish  piracy.  Against 
this  final  series  of  articles  the  two  chief  objec- 
tions urged  were,  that  they  implied  that  the  flag 
does  not  cover  enemy's  goods,  and  that  provi- 
sions might  become  contraband.  But  both  these 
positions  were  part  of  the  international  law  of 
the  time.  As  to  enemy's  goods,  the  law  as  stated 
was :  "  Les  marchandizes  neutres  chargees  par 
1'enemie  sont  libres  ;  mais  le  papillon  neutre  ne 
neutralize  pas  la  marchandize  enemie." 2  And 
as  to  provisions,  the  clause  in  the  treaty  that 

1  Diplomacy  of  the  U.  &,  p.  220. 

2  Schoell,  iv.  15. 


SPECIAL   ENVOY  TO   GREAT  BRITAIN.     311 

concerned  them  was,  that  whenever  any  doubt- 
ful articles,  "  which  had  become  contraband  un- 
der the  existing  law  of  nations,"  should  be 
seized,  the  neutral  owners  should  receive  full 
compensation.  The  principle  then  maintained 
by  England  and  denied  by  the  United  States, 
that  in  certain  cases  —  for  instance,  of  imper- 
fect blockade  —  provisions  became  contraband, 
has  sinclvfaeen  generally  abandoned  even  by 
England.  But  as  late  as  the  recent  Franco- 
Chinese  war  the  French  government  declared 
rice,  conveyed  by  neutral  vessels  to  North  China 
ports,  to  be  contraband  of  war ;  and  when  pro- 
visions are  to  be  used  in  warlike  operations,  they 
are  unquestionably  contraband.1  It  was  finally 
provided  that  nothing  in  the  treaty  should  be  so 
construed  as  to  conflict  with  existing  treaties 
with  other  States.  It  was,  therefore,  a  false 
political  cry  to  assert,  as  was  asserted  a  thou- 
sand times,  that  the  treaty  was  in  violation  of 
the  treaties  with  France. 

It  is  true  that  Jay  failed  to  obtain  an  article 
against  impressments  ;  which  then  and  the  next 
year  2  he  urged  on  Lord  Grenville  as  essential  to 
preserve  friendship  between  the  two  countries. 

J.  R.  Soley,  "  The  Effect  on  American  Commerce  of  an 
Anglo  -  Continental  War,"  Scribner's  Magazine,  November, 
1889. 

2  To  Lord  Grenville,  May  1,  1796,  Jay  MSS. 


312  JOHN  JAY. 

But  even  the  War  of  1812  failed  to  secure  a 
formal  renunciation  of  that  evil.  That  negotia- 
tion should  have  succeeded  in  effecting  what  war 
failed  to  achieve,  was  scarcely  to  be  expected. 

To  unprejudiced  eyes  after  the  lapse  of  a  hun- 
dred years,  considering  the  mutual  exasperation 
of  the  two  peoples,  the  pride  of  England  in  her 
successes  in  the  war  with  France,  the  weakness 
and  division  of  the  United  States,  the  treaty 
seems  a  very  fair  one.  Certainly  one  far  less 
favorable  to  America  would  have  been  infinitely 
preferable  to  a  war,  and  would  probably  in  the 
course  of  time  have  been  accepted  as  being  so. 
The  commercial  advantages  were  not  very  con- 
siderable, but  they  at  least  served  as  "  an  enter- 
ing wedge,"  to  quote  Jay's  expression,  and  they 
were  pro  tanto  a  clear  gain  to  America.  Some 
such  thoughts  may  have  been  in  Lord  Sheffield's 
mind,  when,  at  the  breaking  out  of  the  War  of 
1812,  he  remarked :  "  We  have  now  a  complete 
opportunity  of  getting  rid  of  that  most  impolitic 
treaty  of  1794,  when  Lord  Grenville  was  so  per- 
fectly duped  by  Jay."  l  And  it  is  significantly 
admitted  by  the  latest  biographer  of  the  demo- 
cratic hero,  Andrew  Jackson,  that  "  Jay's  treaty 
was  a  masterpiece  of  diplomacy,  considering  the 
time  and  the  circumstances  of  this  country."2 

1  To  Mr.  Abbott,  Nov.  6,  1812,  Correspondence  of  Lord  Col- 
chester, ii.  409. 

2  Simmer,  Andrew  Jackson,  p.  12. 


SPECIAL   ENVOY   TO    GREAT  BRITAIN.     313 

The  truth  of  the  whole  matter  was  probably 
expressed  as  well  as  ever  by  Lord  Grenville  to 
Jay,  in  1796 :  "  It  is  a  great  satisfaction  to  me, 
when,  in  the  course  of  so  many  unpleasant  dis- 
cussions as  a  public  man  must  necessarily  be  en- 
gaged in,  he  is  able  to  look  back  upon  any  of 
them  with  as  much  pleasure  as  I  derived  from 
that  which  procured  me  the  advantage  of  friend- 
ship and  intercourse  with  a  man  valuable  on 
every  account.  .  .  .  I,  on  my  part,  should  have 
thought  that  I  very  ill  consulted  the  interests  of 
my  country,  if  I  had  been  desirous  of  terminat- 
ing the  points  in  discussion  between  us  on  any 
other  footing  than  that  of  mutual  justice  and 
reciprocal  advantage ;  nor  do  I  conceive  that 
any  just  objection  can  be  stated  to  the  great 
work  which  we  jointly  accomplished,  except  on 
the  part  of  those  who  believe  the  interests  of 
Great  Britain  and  the  United  States  to  be  in 
contradiction  with  each  other,  or  who  wish  to 
make  them  so."  1 

In  England  Jay  made  many  friends:  the 
Bishop  of  London,  whose  parents  were  Ameri- 
can born,  Henry  Dundas,  Sir  William  Scott, 
Sir  Henry  Newenham,  Edmund  Burke,  to  whom 
he  afterwards  sent  cuttings  of  apple  trees,  Lord 
Chancellor  Loughborough,  who  invited  him  to 

1  From  Lord  Grenville,  March  17,  1796,  Jay's  Jay,  ii.  267, 
268. 


314  JOHN  JAY. 

attend  the  trial  of  the  pyx,  and  sent  him  a  brace 
of  grouse,  Sir  John  Sinclair,  the  President  of 
the  Board  of  Agriculture,  who  invited  him  to 
look  at  his  flock  of  sheep  and  various  mechan- 
ical inventions,  of  which  he  wrote  a  long  ac- 
count to  Judge  Hobart,  Lord  and  Lady  Morn- 
ington,  Jeremy  Bentham,  Dugald  Stewart,  and 
William  Wilberforce,  with  each  of  whom  he 
kept  up  an  occasional  but  most  friendly  corre- 
spondence for  the  rest  of  his  life.  In  Wilber- 
berforce's  diary  is  the  entry :  "  Dined  at  Hamp- 
stead  to  meet  Jay  (the  American  envoy),  his 
son,  etc.,  —  quite  American  —  sensible.  I  fear 
there  is  little  spirit  of  religion  in  America ;  some- 
thing of  French,  tinctured  with  more  than  Eng- 
lish simplicity  of  manners ;  very  pleasing,  well- 
informed  men.  American  Abolition  of  Foreign 
Slave  Trade."  l 

On  May  28th  Jay  arrived  in  New  York.  As 
during  the  period  of  his  mission  he  had  con- 
tinued to  hold  the  position  of  chief  justice,  he 
refused  any  compensation  except  for  actual  ex- 
penses. The  treaty  was  not  published  till  July 
2d,  the  day  after  Jay's  inauguration  as  gov- 
ernor, and  then  only  by  a  breach  of  senatorial 
etiquette  ;  yet  some  mention  must  be  made  here 
of  the  exciting  scenes  which  followed. 

Even  before  its  contents  were  known,  letters, 

1  Life  of  William  Wilberforce,  ii.  57. 


SPECIAL  ENVOY  TO   GREAT  BRITAIN.     315 

signed  "Franklin,"  appeared  abusing  the  treaty; 
and  in  Philadelphia  an  effigy  of  Jay  was  placed 
in  the  pillory,  and  ^finally  taken  down,  guillo- 
tined, the  clothes  fired,  and  the  body  blown  up.1 
It  was  clear,  then,  that  it  was  not  this  particular 
treaty,  but  any  treaty  at  all  with  Great  Britain, 
that  excited  the  wrath  of  the  Republicans.  On 
July  4th  toasts,  insulting  Jay  or  making  odious 
puns  on  his  name,  were  the  fashion.  Two  days 
after  a  copy  of  the  treaty  reached  Boston,  a  mass 
meeting  was  called,  though  there  had  been  no 
time  to  consider  it,  and  condemnatory  resolu- 
tions were  passed.  In  New  York,  on  the  18th, 
similar  action  was  had  ;  Hamilton  tried  to  make 
himself  heard,  but  was  stopped  by  a  volley  of 
stones  ;  and  the  treaty  and  a  picture  of  Jay  were 
burnt  on  the  Bowery.  One  effigy  represented 
Jay  holding  a  pair  of  scales,  with  the  treaty  on 
one  side  and  a  bag  of  gold  on  the  other,  while 
from  his  mouth  proceeded  this  label,  "  Come  up 
to  my  price,  and  I  will  sell  you  my  country." 
James  Savage,  once  President  of  the  Massachu- 
setts Historical  Society,  told  his  grandson  that 
he  remembered  seeing  these  words  chalked  in 
large  white  letters  around  the  inclosure  of  Mr. 
Robert  Treat  Paine  :  — 

"  Damn  John  Jay !      Damn  every  one  that 
won't  damn  John  Jay  ! !     Damn  every  one  that 

1  McMaster,  Hist,  of  the  People  of  U.  £,  ii.  213. 


316  JOHN  JAY. 

won't  put  lights  in  his  windows  and  sit  up  all 
night  damning  John  Jay  !  !  !  "* 

On  June  24th  the  treaty  was  ratified  by  the 
Senate,  with  the  exception  of  the  article  about 
the  West  India  trade.  On  August  15th  it  was 
signed,  with  the  same  exception,  by  Washing- 
ton. The  following  spring,  March  3,  1796,  the 
treaty  was  proclaimed  the  supreme  law  of  the 
land  ;  yet  even  then  the  Republicans,  claiming 
that  the  House  had  an  equal  share  with  the 
Senate  in  treaty-making,  tried  to  defeat  it  by 
preventing  the  passage  of  laws  necessary  to  carry 
it  into  effect ;  and  the  honor  of  the  nation  was 
saved  only  by  the  casting  vote  of  Muhlenberg, 
the  chairman,  in  committee  of  the  whole,  though 
he  was  a  member  of  the  Democratic  Club,  and 
in  the  House  only  by  a  majority  of  three.  That 
the  essays  of  Hamilton  as  "  Camillus,"  and  the 
famous  speech  of  Fisher  Ames  contributed  as 
much  as  anything  to  this  happy  issue,  is  too 
well-known  to  need  more  than  mention  of  the 
fact.  One  may  at  least,  however,  reecho  Ames's 
prayer :  "  Lord,  send  us  peace  in  our  day,  that 
the  passions  of  Europe  may  not  inflame  the 
sense  of  America  !  "  2 

Throughout    the  storm   of   vituperation   Jay 

1  John  Jay,  Second  Letter  on  Dawson's  Federalist,  N.  Y., 
1864,  p.  19. 

2  Works  of  Fisher  Ames,  i.  196. 


SPECIAL   ENVOY  TO   GREAT  BRITAIN.      317 

himself  remained  calm  and  philosophical.  "  As 
to  my  negotiation  and  the  treaty,"  he  wrote  to 
Judge  Gushing,  "  I  left  this  country  well  con- 
vinced that  it  would  not  receive  anti-Federal 
approbation  ;  besides,  I  had  read  the  history  of 
Greece,  and  was  apprized  of  the  politics  and 
proceedings  of  more  recent  date."  l  "  Calumny," 
he  said  again,  "  is  seldom  durable,  it  will  in  time 
yield  to  truth."  2  He  had  at  least  done  his  duty, 
though  by  so  doing  he  very  possibly  lost  the 
Presidency  of  the  United  States.3 

1  To  Judge  Gushing,  July  11,  1795,  Jay  MSS. 

2  To  John  Patterson,  Nov.  17,  1795,  Jay  MSS. 

8  Hamilton,  "  Camillus,"  July  22,  1795,  Works,  vii.  175. 


CHAPTER  XII. 

GOVERNOR   OF  NEW   YORK. 

1795-1801. 

BEFORE  his  return  from  England,  and  long 
before  any  details  of  the  treaty  were  published, 
Jay  was  nominated  for  governor  of  New  York 
by  a  caucus  of  the  Federalists  in  the  legislature, 
and  in  due  time  was  elected.  "  It  had  been  so 
decreed  from  the  beginning," l  wrote  Egbert 
Benson ;  it  had  at  least  been  so  decreed  ever 
since  the  infamous  counting  out  in  1792.  "  God 
only  knows,"  was  Jay's  reply,  "  whether  my 
removal  from  the  bench  2  to  my  present  station 
will  conduce  to  my  comfort  or  not.  The  die  is 
cast,  and  nothing  remains  for  me  to  consider  but 
how  to  fulfill  in  the  best  manner  the  duties  in- 
cumbent on  me,  without  any  regard  to  personal 
consequences."  3 

One  of  his  first  acts  as  governor  showed  his 
conservative  adherence  to  legal  customs,  even 

1  June  12,  1795,  Jay  MSS. 

2  Jay  resigned  the  chief  justiceship  of  the  U.  S. 

3  To  Egbert  Benson,  June  27,  1795,  Jay  MSS. 


GOVERNOR   OF  NEW    YORK.  319 

when  he  had  full  discretion.  To  a  request  from 
Governor  Huntington,  of  Connecticut,  for  the 
extradition  of  two  criminals,  in  a  case  where 
urgency  seemed  to  justify  the  omission  of  some 
of  the  usual  papers,  Jay  answered :  "I  do  not 
think  myself  at  liberty  to  dispense  with  the  pre- 
cise formalities  prescribed."  1 

In  the  autumn  the  yellow  fever  broke  out  in 
New  York.  During  the  French  and  English 
war  the  price  of  necessaries  had  risen  enor- 
mously, out  of  all  proportion  to  the  rise  in 
wages ;  house  rent  had  almost  doubled ;  the 
poorer  people,  mainly  Irish  immigrants,  lived  in 
damp  cellars,  and  the  system  of  sewerage  also 
was  most  imperfect,  if  there  could  be  said  to  be 
any  system  at  all.  In  such  conditions  every- 
thing favored  the  spread  and  continuance  of 
epidemic  diseases.  In  the  autumn  of  1791  there 
was  an  outbreak  of  yellow  fever  near  Peck 
Slip,  among  the  boating  population,  while  on 
the  west  side  intermittent  fever  was  common. 
Occasional  cases  of  the  fever  occurred  during 
the  next  few  years,  till  in  August  and  Septem- 
ber, 1795,  there  was  a  real  epidemic.  Tar  was 
burnt  in  the  streets.  The  students  left  Colum- 
bia College.  A  member  of  the  health  commit- 
tee died  of  the  fever,  and  one  of  Jay's  intimate 
friends,  Mr.  Wentworth,  also  died  of  it  after 

1  To  Gov.  Huntington,  July,  1795,  Jay  MSS. 


320  JOHN  JAY. 

two  days'  sickness.  On  August  14th  Jay  issued 
a  proclamation  forbidding  any  vessel  from  the 
West  Indies  to  approach  nearer  the  city  than 
Governor's  Island  till  she  had  a  health  certifi- 
cate from  the  health  officer  of  the  port.  The 
alarm  spread  to  other  cities,  and  Governor  Mif- 
flin,  of  Pennsylvania,  on  August  31st,  prohibited 
"  all  intercourse "  between  Philadelphia  and 
New  York  for  a  month ;  and  intercourse  was 
not  resumed  till  October  21st.  The  governor 
of  Virginia  also  ordered  all  vessels  from  New 
York  to  perform  quarantine.  New  York  mer- 
chants were  greatly  inconvenienced,  and  Jay, 
after  consulting  the  Medical  Society,  the  Health 
Committee,  and  the  mayor,  forwarded  their  re- 
ports to  Governor  Miffiin,  urging  that  the  dis- 
ease was  strictly  localized  and  under  control, 
and  that  such  violent  preventive  measures  were 
unnecessary  ;  but  the  memory  of  the  fever  in 
Philadelphia  in  1793  was  too  vivid  for  his  words 
to  have  much  effect.1  The  French  consul  and 
his  fellow-citizens  invited  Jay  to  a  "  republican 
entertainment"  on  September  22d,  but  he  de- 
clined, saying:  "While  general  anxiety  and 
alarm  "  pervaded  his  native  city,  it  would  not 
"  be  in  his  power  to  command  that  degree  of 

1  Davis,  A  Brief  Account  of  the  Epidemical  Fever  which 
lately  prevailed  in  the  city  of  New  York.    N.  Y.,  1795. 


GOVERNOR    OF  NEW   YORK.  321 

hilarity  which  becomes  such  convivial  scenes." 1 
Throughout  the  whole  period  of  danger  he 
stayed  in  the  city,  as  a  matter  of  duty ;  and  re- 
fused an  invitation  to  visit  for  safety  a  friend 
in  New  Jersey,  with  the  explanation  :  "  Our  sit- 
uation affords  us  considerable  security  against 
the  disorder,  and  I  think  it  best  that  my  family 
should  remain  here,  lest  their  removal  should 
increase  the  alarm  which  is  already  too  great. 
If,  indeed,  the  danger  should  become  very  immi- 
nent, it  would  doubtless  be  right  for  Mrs.  Jay 
and  the  children  to  leave  me,  and  go  into  the 
country."2  With  the  return  of  cold  weather 
the  plague  ceased,  and  Jay  issued  a  proclamation 
appointing  Thursday,  November  26th,  a  day 
for  "  his  fellow-citizens  throughout  the  State 
to  unite  in  public  thanksgiving  to  that  Being 
through  whose  Providence  the  ravages  of  the 
yellow  fever  had  been  stayed."  This  was  the 
first  Thanksgiving  Day  in  New  York,  though  in 
other  States,  on  exceptional  occasions,  days  for 
special  thanksgiving  had  been  similarly  ap- 
pointed. But  the  innovation  was  thought  by 
Jay's  political  enemies  to  be  a  stretch  of  execu- 
tive power,  and  few  acts  of  his  were  more  bit- 
terly censured  than  this  innocent  one  of  grati- 
tude and  reverence.  The  fever  of  1795  is  now 

1  To  the  Consul,  Sept.  19,  1795,  Jay  MSS. 

2  To  John  Blanchard,  Oct.  3,  1795,  Jay  MSS. 


322  JOHN  JAY. 

chiefly  noteworthy  historically  as  the  immediate 
cause  of  the  introduction  of  an  underground 
system  of  sewerage.1 

On  January  6,  1796,  the  legislature  convened 
with  a  Federalist  majority  in  both  houses.  It 
was  then  customary  for  the  governor  to  open  the 
session  by  a  speech  which  was  answered  by  an 
address.  In  his  speech,  Jay  stated  that  he  was 
determined  "  to  regard  all  his  fellow-citizens 
with  an  equal  eye,  and  to  cherish  and  advance 
merit  wherever  found ;  "  he  recommended  that 
provision  be  made  for  the  defense  of  the  State 
in  case  of  war ;  that  the  Chancellor  and  the 
judges  of  the  Supreme  Court  should  receive 
pensions  on  their  superannuation ;  that  a  peni- 
tentiary be  established  for  the  employment  and 
reformation  of  criminals ;  and  that  some  plan 
of  internal  improvements  be  adopted  for  facil- 
itating travel  through  the  State ;  he  also  re- 
quested a  settlement  of  the  doubts  that  had 
arisen  as  to  whether  the  governor  had,  under 
the  Constitution,  the  exclusive  right  of  nomina- 
tion in  the  Council  of  Appointment.  The  legis- 
lature returned  a  most  amiable  answer  :  "  The 
evidence,"  they  said,  "  of  ability,  integrity,  and 
patriotism  which  have  been  invariably  afforded 
by  your  conduct  in  the  discharge  of  the  variety 
of  arduous  and  important  trusts,  authorize  us  to 

1  Schouler,  Hist,  of  U.  S.,  i.  238. 


GOVERNOR    OF  NEW   YORK.  323 

anticipate  an  administration  conducive  to  the 
welfare  of  your  constituents."  The  word  "  in- 
variably," which  Hammond  terms  an  "instance 
of  legislative  sycophancy,"  1  was  inserted  by  the 
Senate,  by  a  vote  of  eleven  to  six,  on  motion  of 
Ambrose  Spencer,  the  future  chief  justice,  who 
was  so  soon  to  become  a  Republican. 

No  practical  result  immediately  followed  the 
governor's  suggestions ;  and  a  bill  to  abolish 
slavery,  introduced  by  an  intimate  friend  of  his, 
was  defeated  by  the  casting  vote  of  the  chair- 
man in  committee  of  the  whole.  In  the  spring 
of  1796  Jay  thought  fit  to  publish  his  views 
on  the  French  Revolution,  in  the  form  of  a 
letter  to  a  friend,  11.  G.  Harper,  who  had  de- 
fended him  with  rather  undiscrimiiiating  zeal, 
asserting  that  he  always  had  expressed  "  the 
utmost  pleasure  in  the  French  Revolution." 2 
Many  politicians  would  be  only  too  glad  to 
have  their  unpopular  opinions  discreetly  ex- 
plained away  or  suppressed ;  but  such  was  not 
Jay's  feeling.  He  had  from  early  life,  he  said, 
expressed  "strong  dislike  for  the  former  arbi- 
trary government  of  France;"  he  rejoiced  in 
the  revolution  "  which  put  a  period  to  it,"  "  the 
one  which  limited  the  power  of  the  king,  and  re- 
stored liberty  to  the  people."  "  The  successors 

1  Hammond,  Pol  Hist,  of  N.  F.,  p.  97. 

2  Jan.  19,  1796,  N.  Y.  Journal,  Feb.  26,  1796. 


324  JOHN  JAY. 

of  that  memorable  assembly  produced  another 
revolution.  They  abolished  the  constitutional 
government  which  had  just  been  established,  and 
brought  the  king  to  the  scaffold."  That  revo- 
lution did  not  give  him  pleasure,  marked  as  it 
was  by  "  atrocities  very  injurious  to  the  cause  of 
liberty,  and  offensive  to  liberty  and  morality." 
Yet,  as  its  overthrow  by  the  combined  powers 
would  be  "  an  interference  not  to  be  submitted 
to,"  he  wished  success  to  the  revolution  so  far 
as  it  had  for  its  object  the  formation  of  a  con- 
stitution adapted  to  the  people  of  France,  and 
"  not  the  disorganizing  and  managing  of  other 
States,  which  ought  neither  to  be  attempted  nor 
permitted."  This  temperate  letter  was  violently 
attacked  by  "  An  Enemy  of  Oppression,"  *  by 
"  Publius,"  in  a  series  of  articles,2  and  finally 
by  "  Common  Sense,"  the  pseudonym  of  Thomas 
Paine.3  Paine's  argument  was  limited  to  assert- 
ing that,  if  John  Jay  had  had  his  way,  America 
would  never  have  secured  independence,  and 
that  Jay  once  said  that  the  Senators  should 
have  been  appointed  for  life.  "These  are  the 
disguised  traitors,"  including  Washington  and 
Adams,  "  that  call  themselves  Federalists." 4 

1  N.  Y.  Journal,  March  8,  1796. 

2  Ibid.,  March  29,  April  1,  5,  1796. 

3  Ibid.,  April  15,  1796. 

4  Ibid.,  Oct.  21,  1796. 


GOVERNOR   OF  NEW   YORK.  325 

Jay,  however,  was  a  revolutionist  as  true  as 
Paine  was,  but  infinitely  wiser.  As  he  wrote  to 
Yaughan :  "  Liberty  and  reformation  may  make 
men  mad,  and  madness  of  any  kind  is  no  bless- 
ing. I  nevertheless  think,  that  there  may  be  a 
time  for  change,  as  well  as  for  other  things  ;  all 
that  I  contend  for  is,  that  they  be  done  soberly, 
by  sober  and  discreet  men,  and  in  due  manner, 
measure,  and  proportion.  It  may  be  said  that 
this  cannot  always  be  the  case.  It  is  true,  and 
we  can  only  regret  it.  We  must  take  men  and 
things  as  they  are,  and  act  accordingly;  that  is, 
circumspectly."  1 

The  governor  incurred  still  further  odium  by 
refusing  to  order  the  flags  to  be  hoisted  on  Gov- 
ernor's Island  and  the  Battery  on  the  anniver- 
sary of  the  Tammany  Society;  the  reason  he 
gave  was,  that  "  if  such  a  compliment  be  paid  to 
the  Tammany,  it  ought  not  to  be  refused  to  any 
other  of  the  numerous  societies  in  this  city  and 
State."  2 

This  year,  as  it  is  said,  at  Jay's  suggestion, 
a  penitentiary  was  built  in  New  York,  on  the 
model  of  the  one  of  which  Philadelphia  was  at 
this  time  so  proud.  He  also  advised  the  pur- 
chase of  Bedloe's  Island  for  a  lazaretto.  At  his 
suggestion,  also,  Governor  Clinton's  recommend- 

1  To  William  Vaughan,  May  26,  1796,  Jay  MSS. 

2  Letter  of  May  11,  1796,  Jay  MSS. 


326  JOHN  JAY. 

ation  of  a  revision  of  the  penal  code  was  re- 
vived, and  the  number  of  offenses  punishable 
by  death  was  greatly  diminished.  His  strict- 
ness, however,  in  exercising  the  right  of  pardon 
was  illustrated  by  his  refusal  of  a  request  from 
Governor  Wolcott,  of  Connecticut,  to  intervene 
in  behalf  of  a  young  gentleman  of  good  family, 
convicted  of  forgery :  "  Justice  .  .  .  cannot  look 
with  more  favorable  eye  on  those  who  become 
criminal  in  spite  of  a  good  education  and  of 
good  examples  than  of  those  other  offenders  who 
from  infancy  have  lived  destitute  of  those  ad- 
vantages." 1 

The  seat  of  government  was  now  changed  to 
Albany,  where  the  legislature  held  its  first  ses- 
sion, January  2,  1798.  No  provision  was  made 
for  the  governor's  residence,  so  Jay  lived  in 
lodgings,  and  was  not  joined  by  Mrs.  Jay  till  the 
following  year.  Again  a  bill  to  abolish  slavery 
was  introduced,  but  was  lost  in  the  Senate.  A 
characteristic  anecdote  of  Jay  at  this  time  is 
given  by  Hammond.  When  the  Council  of  Ap- 
pointment voted  on  the  nomination  of  a  suc- 
cessor to  the  Secretary  of  State,  who  died  in 
office,  Jay's  nominations  were  rejected  time  af- 
ter time  by  a  Doctor  White  and  other  friends 
of  Major  Hale,  of  Albany.  At  last  the  governor 
reluctantly  nominated  Hale  who  was  immedi- 
1  To  Gov.  Wolcott,  Oct.  20,  1797,  Jay  MSS. 


GOVERNOR   OF  NEW   YORK.  327 

ately  confirmed.  "  The  governor  soon  became 
convinced  that  his  opposition  to  the  appointment 
was  caused  by  erroneous  impressions,  and  when 
so  convinced  he  lost  no  time  in  communicating 
to  Doctor  White  and  Major  Hale  his  conviction 
that  he  was  well  satisfied  that  he  was  wrong, 
and  that  the  friends  of  Major  Hale  were  right."  l 
In  April,  1798,  Jay  was  renominated  and  re- 
elected  by  the  large  majority  of  2,380  votes, 
about  one  twelfth  of  all  the  votes  cast,  over  the 
Republican  candidate,  Chancellor  Livingston ;  a 
personal  triumph,  as  the  Republicans  made  great 
gains  in  the  legislature.  Soon  the  news  of  the 
insolent  treatment  of  the  American  envoys  by 
the  French  government,  and  the  famous  X,  Y, 
Z  letters  excited  general  resentment  among  the 
people.  War  with  France  was  thought  to  be 
imminent.  In  June  committees  of  citizens  of 
New  York  petitioned  the  governor  to  summon  a 
special  session  of  the  legislature  for  the  sake  of 
passing  measures  for  the  better  defense  of  the 
city  and  the  port.  The  mayor  and  council  co- 
operated with  the  citizens'  committees  in  raising 
money  for  defense.  Jay  accordingly  by  pro- 
clamation called  an  extraordinary  session  of  the 
legislature  to  meet  at  Albany  in  August,  giving 
as  his  reasons  the  fear  of  a  war  with  France  and 
the  necessity  of  raising  funds  and  making  pre- 

1  Hammond,  Pol  Hist.  ofN.  Y.,  pp.  112,  113. 


328  JOHN  JAY. 

parations  for  defense.  "  At  this  place,"  wrote 
Peter  A.  Jay,  from  New  York,  "  the  stream  of 
public  opinion  continues  to  run  with  increasing 
rapidity  in  our  favor.  Several  insults  lately 
offered  to  the  Cockade,1  and  the  song  of  "  Hail 
Columbia,"  contributed  to  accelerate  it.  A  few 
evenings  ago  I  was  unluckily  one  of  a  company 
who  received  much  abuse  on  account  of  the  lat- 
ter." 2  The  legislature,  however,  was  still  Fed- 
eralist, and  unanimously  voted  an  address  to  the 
President,  pledging  the  support  of  the  State  in 
his  endeavors  to  maintain  the  rights  and  honor 
of  the  nation.  Money  was  also  appropriated  for 
the  erection  of  fortifications  and  the  purchase  of 
arms  at  the  discretion  of  the  governor. 

The  extra  session  adjourned  till  January  2, 
1799.  During  this  session,  in  April,  emancipa- 
tion was  at  last  enacted.  It  was  provided  that 
all  children  born  of  slave  parents  after  the 
ensuing  4th  of  July  should  be  free,  subject  to 
apprenticeship,  in  the  case  of  males  till  the  age 
of  twenty-eight,  in  the  case  of  females  till  the 
age  of  twenty-five,  and  the  exportation  of  slaves 
was  forbidden.  By  this  process  of  gradual 
emancipation  there  was  avoided  that  question 
of  compensation  which  had  been  the  secret  of 

1  The  Federalists  had  adopted  a  black  cockade  as  a  distinc- 
tive badge. 

2  From  Peter  A.  Jay,  Aug.  1,  1798. 


GOVERNOR   OF  NEW    YORK.  329 

the  failure  of  earlier  bills.  At  that  time  the 
number  of  slaves  was  only  22,000,  small  in  pro- 
portion to  the  total  population  of  nearly  a  mil- 
lion.1 So  the  change  was  effected  peacefully 
and  without  excitement.  Jay  himself  was  a 
slave-holder,  in  a  certain  sense.  "  I  have  three 
male  and  three  female  slaves,"  he  wrote  in  a 
return  of  his  property  to  the  Albany  assessors, 
November  8,  1798 ;  "  five  of  them  are  with  me 
in  this  city ;  and  one  of  them  is  in  the  city  of 
New  York.  I  purchase  slaves  and  manurnit 
them  at  proper  ages,  and  when  their  faithful 
services  shall  have  afforded  a  reasonable  retri- 
bution."2 Perhaps  the  governor's  practice  in 
this  respect  may  have  suggested  the  practical 
manner  of  emancipation. 

Though  the  legislature  was  still  Federalist, 
and  remained  so  even  after  the  April  elections, 
there  were  a  number  of  members,  elected  as  Fed- 
eralists, who  acted  in  all  except  personal  and 
minor  matters  with  the  Republicans.3  Accord- 
ingly amendments  to  the  Constitution,  proposed 
by  the  legislature  of  Massachusetts,  increasing 
the  disability  of  aliens,  were  rejected,  in  spite  of 
the  governor's  favor.  Also  the  House  passed  a 
Republican  resolution,  which  was  rejected  by 

1  Roberts,  "  New  York,"  Am.  Comm.  Series,  ii.  483,  484. 

2  Jay  MSS. 

8  Hammond,  Pol.  Hist,  of  N.  Y.,  ii.  123. 


330  JOHN  JAY. 

the  Senate,  for  dividing  the  State  into  districts 
for  the  election,  by  the  people,  of  presidential 
electors. 

In  the  electoral  college  this  year  Jay  received 
nine  votes  for  the  Presidency  of  the  United 
States,  viz.  :  those  of  New  Jersey  and  Delaware, 
five  out  of  Connecticut's  nine  votes,  and  one 
from  Rhode  Island. 

In  his  message  to  the  legislature,  January, 
1800,  the  governor  delivered  "  a  short  but  grace- 
ful "  eulogy  on  Washington,  who,  to  the  sorrow 
of  the  country  and  the  "  irreparable  loss  "  of  the 
Federalists  as  a  party,  had  died  in  December. 
He  recommended  further  provision  for  the  pub- 
lic schools,  and  various  amendments  of  the  laws. 
In  March  the  Republicans  renewed  the  attempt 
to  secure  a  districting  of  the  State,  but  without 
success,  the  Federalists  declaring  that  such  an 
act  would  be  unconstitutional,  and  that  it  was 
essential  that  the  State  should  act  as  a  body 
corporate  in  the  choice  of  presidential  electors. 

At  the  spring  elections,  contrary  to  general 
expectation,  through  the  able  political  manage- 
ment of  Burr,  the  Republicans  triumphed 
throughout  the  State,  wresting  New  York  city 
from  the  Federalists,  and  returning  a  majority 
of  twenty-eight  to  the  House,  while  the  Senate 
was  Federalist  by  only  the  small  majority  of 
eight.  As  it  was  admitted  that  the  next  elec- 


GOVERNOR   OF  NEW    YORK.  331 

tion  for  President  would  turn  on  the  vote  of  New 
York,  and  New  York  would  certainly  return  Re- 
publican electors  if  they  were  chosen  by  the  leg- 
islature in  joint  session,  as  was  then  the  law,  it 
was  now  the  interest  of  the  Federalists  to  ad- 
vocate their  election  by  the  people  in  districts. 
Accordingly,  disregarding  the  previous  record  of 
his  party  and  their  assertion  of  the  unconstitu- 
tionally of  the  measure,  Hamilton,  on  May  7th, 
wrote  to  Governor  Jay  urging  him  to  call  an 
extra  session  of  the  legislature  to  pass  such  an 
act  before  the  expiration  of  the  legislative  year 
on  July  1st.  Philip  Schuyler  wrote  to  the  same 
effect,  saying  that  Marshall  was  of  the  same 
opinion  :  "  Your  friends  will  justify  it,"  he  con- 
tinued, "  as  the  only  means  to  save  a  nation 
from  more  disasters,  which  it  must  and  proba- 
bly will  experience  from  the  misrule  of  a  man 
who  has  given  such  strong  evidence  that  he  was 
opposed  to  the  salutary  measures  of  those  who 
have  been  heretofore  at  the  helm,  and  who  is  in 
fact  pervaded  with  the  mad  French  philoso- 
phy." These  words  well  expressed  the  fears 
and  frenzy  of  the  Federalists.  As  a  party,  they 
had  created  a  nation  out  of  a  confederation, 
and  in  the  spirit  of  latter-day  Republicans  who 
felt  that  they  had  saved  the  country  from  dis- 
memberment, they  were  convinced  that  on  their 
i  Jay  MSS. 


332  JOHN  JAY. 

continuance  in  power  depended  the  conservation 
and  prosperity  of  the  State.  A  party  which 
tacitly  or  openly  holds  such  a  belief  will  nat- 
urally justify  any  measure  to  secure  itself  in 
power  by  the  final  appeal  to  national  self-pre- 
servation ;  but  such  a  party  in  control  of  the 
government  is  a  menace  to  popular  liberty,  and 
in  any  healthy  state  of  public  opinion  is  doomed 
to  swift  defeat,  and,  perhaps,  as  happened  in 
this  case,  to  extinction.  Jay,  though  as  "  stal- 
wart "  a  Federalist  as  any,  nevertheless  did  not 
believe  that  a  good  end  ever  justified  bad 
means  ;  and  he  contented  himself  with  simply 
indorsing  on  Hamilton's  letter  the  significant 
words :  —  "  Proposing  a  measure  for  party  pur- 
poses which  I  think  it  would  not  become  me  to 
adopt." 

On  the  convening  of  the  new  legislature  in 
November  the  governor,  in  his  speech,  depre- 
cated the  danger  of  undue  political  excitement 
and  urged  the  suppression  of  partisan  inflamma- 
tory feeling.  He  also  recommended  the  calling 
of  a  convention  to  restrict  the  number  of  sena- 
tors and  assemblymen.  His  appeal,  however, 
was  in  vain ;  and  for  the  remainder  of  his  term 
he  was  harassed  by  the  partisan  attitude  of  the 
legislature.  Thus  that  body  instantly  proceeded 
to  elect  a  new  Council  of  Appointment,  of  which 
only  one  member  was  a  Federalist ;  and  the  new 


GOVERNOR  OF  NEW   YORK.  333 

Council,  from  the  moment  when  it  first  met  the 
governor  in  the  following  February,  began  a 
controversy  which  was  settled  only  by  an  amend- 
ment to  the  Constitution. 

Before  separating,  after  adjournment  on  No- 
vember 8th,  the  Kepublicans  nominated  Clin- 
ton as  their  next  candidate  for  the  governorship, 
and  the  Federalists,  in  a  complimentary  address, 
urged  Jay  to  consent  to  be  renominated.  "  The 
period  is  now  nearly  arrived/'  was  Jay's  answer, 
"  at  which  I  have  for  many  years  intended  to 
retire  from  the  cares  of  public  life,  and  for 
which  I  have  been  for  more  than  two  years  pre- 
paring ;  not  perceiving,  after  mature  considera- 
tion, that  my  duties  require  me  to  postpone  it,  I 
shall  retire  accordingly."  * 

The  contest  between  the  governor  and  a  ma- 
jority of  the  Council  of  Appointment  must  be 
mentioned,  though  briefly.  On  February  llth 
the  governor  made  a  nomination  for  sheriff  of 
Dutchess  County  ;  it  was  rejected.  Seven  other 
nominations  by  him  for  the  same  office  were 
successively  rejected.  He  then  nominated  a 
Kepublican  who  was  confirmed.  On  February 
24th  the  governor  made  several  nominations  for 
sheriff  of  Schoharie  and  sheriff  of  Orange,  but, 
all  were  rejected.  Finally  a  member  of  the 
Council  made  a  nomination,  and  the  governor, 
1  Jay's  Jay,  i.  419,  420. 


334  JOHN  JAY. 

instead  of  putting  the  question,  made  another. 
The  issue  was  now  defined,  the  governor  insist- 
ing on  the  sole  right  of  nomination,  and  the 
Council  claiming,  for  the  first  time,  a  concur- 
rent right.  The  governor  never  called  the  Coun- 
cil together  again.  In  a  special  message  to  the 
legislature  he  referred  to  his  first  address  as 
governor,  when  he  had  requested  a  settlement 
of  the  question,  and  now  he  again  asked  their 
directions.  The  legislature  declined  acting  on 
a  constitutional  question.  He  asked  the  opinion 
of  the  judges  of  the  Supreme  Court  and  the 
chancellor  ;  but  they  refused  to  decide  the  ques- 
tion, as  extra-judicial.  On  April  6th  an  act  was 
passed  "  recommending  a  convention  "  to  ascer- 
tain the  construction  of  the^  disputed  clause  in 
the  Constitution,  and  to  consider  the  question  of 
diminishing  the  number  of  senators  and  assem- 
blymen. The  convention,  which  met  after  the 
election  of  Clinton  as  governor,  upheld  the  posi- 
tion of  the  Council.  In  the  later  Constitutional 
Convention  of  1821  Governor  Tompkins,  who 
had  voted  against  his  party  in  the  earlier  body, 
declared  that  it  was  "  assembled  to  sanction  a 
violent  construction  of  the  Constitution.  Then, 
the  maxim  was  to  strip  the  governor  of  as  much 
power  as  possible.  Now,  gentlemen  are  for 
giving  him  more  power."  1  It  was,  indeed,  the 
1  Hammond,  Pol.  Hist.  ofN.  F.,  ii.  155,  156,  166,  167. 


GOVERNOR  OF  NEW   YORK.  325 

allowing  members  of  the  Council,  among  whom 
were  various  senators,  to  exercise  the  power  of 
nomination  as  well  as  of  confirmation,  that  made 
the  Council  a  by- word  for  political  corruption 
and  favoritism  until  popular  contempt  achieved 
its  abolition. 

In  his  first  address  to  the  legislature,  as  we 
have  seen,  Jay  had  announced  that  he  would 
seek  out  and  advance  merit  wherever  found ; 
and  there  is  no  reason  to  doubt  that,  so  far  as 
the  political  complexion  of  the  Council  and  the 
exigencies  of  the  times  permitted,  he  endeav- 
ored to  do  so.  For  appointments,  however,  he 
was  not  solely  responsible,  and  for  removals  he 
was  not  necessarily  responsible  at  all,  as  a  per- 
son might  be  removed  from  office  on  motion  of 
any  member  of  the  Council  by  a  majority  vote. 
His  son,  Judge  William  Jay,  says :  — 

"  During  the  six  years  of  Governor  Jay's  ad- 
ministration, not  one  individual  was  dismissed 
by  him  from  office  on  account  of  his  politics. 
So  long  as  an  officer  discharged  his  duties  with 
fidelity  and  ability,  he  was  certain  of  being  con- 
tinued, and  hence  his  devotion  to  the  public  be- 
came identified  with  his  personal  interest.  It  is 
related  that  in  the  Council  a  member  was  urg- 
ing in  behalf  of  a  candidate  his  zeal  and  use- 
fulness as  a  Federalist,  when  he  was  interrupted 
by  the  governor,  with  :  '  That,  sir,  is  not  the  ques- 


336  JOHN  JAY. 

tion  ;  is  he  fit  for  the  office  ? '  "  1  And  it  is  sig- 
nificant that,  in  answer  to  this  statement,  Ham- 
mond, the  Republican  historian  of  New  York, 
could  only  point  to  two  cases  where  the  causes 
for  removal  might  possibly  have  been  political, 
but  were  not  certainly  so.  Mr.  Flanders  cor- 
roborates Judge  Jay,  saying  :  — 

"  The  practice  of  removing  officers,  on  a 
change  of  administration,  had  not  yet  been  in- 
troduced. Governor  Jay  dismissed  no  officer 
during  the  six  years  of  his  administration  on 
account  of  his  political  opinions.  On  one  oc- 
casion he  was  urged  to  remove  a  member  of  his 
own  party,  who  had  little  or  no  influence,  to 
make  room  for  one  of  the  opposite  party,  who 
possessed  a  great  deal,  and  would,  if  appointed, 
use  it  in  favor  of  his  new  connections.  '  And  do 
you,  sir,'  replied  the  governor  to  this  unusual 
application,  '  advise  me  to  sell  a  friend  that  I 
may  buy  an  enemy  ? '  "  2 

In  respect  to  the  whole  question  under  consid- 
eration Jay  was  sensitively  conscientious.  Thus, 
when  Gouverneur  Morris  asked  him  to  recom- 
mend a  nephew  of  Morris's  to  the  President  for 
an  appointment,  the  refusal,  which  Morris  said 
he  had  anticipated,  was  prompt :  "  It  appears 
to  me,"  said  Jay,  "that  the  President  of  the 

1  Jay's  Jay,  i.  392. 

2  Flanders,  Chief  Justices,  I  416. 


GOVERNOR  OF  NEW   YORK.  337 

United  States  and  the  governors  of  individual 
States  should  forbear  to  interpose  their  official 
or  personal  influence  with  each  other  in  the 
appointment  of  officers.  It  would  open  a  door 
for  reciprocal  recommendations  which  would  fre- 
quently prove  embarrassing  from  the  difficulty 
of  always  reconciling  them  to  local  circum- 
stances and  public  considerations."  l 

Jay's  determination  to  retire  from  public  life 
was  absolute  and  final.  He  was  unmoved  even 
by  the  complimentary  letter  of  President  Ad- 
ams, announcing  his  unsolicited  nomination  and 
confirmation,  a  second  time,  as  Chief  Justice  of 
the  United  States.  "  I  had  no  permission  from 
you,"  said  President  Adams,  "  to  take  this  step, 
but  it  appeared  to  me  that  Providence  had 
thrown  in  my  way  an  opportunity,  not  only  of 
marking  to  the  public  the  spot  where,  in  my 
opinion,  the  greatest  mass  of  worth  remained 
collected  in  one  individual,  but  of  furnishing 
my  country  with  the  best  security  its  inhabit- 
ants afforded  against  its  increasing  dissolution 
of  morals."2  "I  left  the  Bench,"  Jay  replied, 
"  perfectly  convinced  that  under  a  system  so  de- 
fective it  would  not  obtain  the  energy,  weight, 
and  dignity  which  was  essential  to  its  affording 
due  support  to  the  national  government ;  nor 

1  To  G.  Morris,  Nov.  26,  1799,  Jay  MSS. 

2  John  Adams  to  Jay,  Dec.  19,  1800,  Jay's  Jay,  ii.  421. 


338  JOHN  JAY. 

acquire  the  public  confidence  and  respect  which, 
as  the  last  resort  of  the  justice  of  the  nation,  it 
should  possess.  Hence  I  am  induced  to  doubt 
both  the  propriety  and  the  expediency  of  my  re- 
turning to  the  Bench  under  the  present  system. 
.  .  .  Independently  of  these  considerations,  the 
state  of  my  health  removes  every  doubt." l 

On  January  13th  the  Federal  Freeholders  of 
New  York  passed  resolutions  commending  his 
public  services  and  regretting  his  retirement; 
and  his  answer  showed  how  far  removed  he  was 
from  the  violent  partisanship  of  the  day :  "  I 
take  the  liberty  of  suggesting  whether  the  patri- 
otic principles  on  which  we  profess  to  act  do 
not  call  upon  us  to  give  (as  far  as  may  depend 
upon  us)  fair  and  full  effect  to  the  known  sense 
and  intention  of  a  majority  of  the  people,  in 
every  constitutional  exercise  of  their  will,  and  to 
support  every  administration  of  the  government 
of  our  country,  which  may  prove  to  be  intelli- 
gent and  upright,  of  whatever  party  the  persons 
composing  it  may  be."2  These  certainly  are 
not  the  words  of  a  disappointed  and  embittered 
politician.  In  May  the  corporation  of  Albany 
presented  him  with  the  freedom  of  the  city,  "  as 
a  further  testimony  of  the  high  sense  the  Com- 

1  To  President  Adams,  Jan.  2,  1801,  Jay  MSS. 

2  Jay  MSS. 


GOVERNOR  OF  NEW   YORK.  339 

mon  Council  entertain  of  your  excellency's  ex- 
alted character."  1 

Thus  ends  the  public  life  of  John  Jay.  For 
twenty-eight  years  he  had  been  continuously  in 
office,  his  appointments  not  infrequently  over- 
lapping one  another.  But  public  office  had 
always  been  to  him  a  public  trust,  or  rather  a 
public  duty,  and  he  cared  for  neither  its  repu- 
tation nor  its  emoluments. 

i  Jay  MSS. 


CHAPTER  XIII. 

IN  EETIREMENT. 

1801-1829. 

THE  time  had  come  at  last  to  which  Jay  had 
for  years  looked  forward  with  so  much  eager- 
ness, when,  relieved  from  public  cares,  he  might 
devote  himself  to  those  quiet  country  pursuits 
which  he  loved,  to  the  society  of  his  wife,  and 
the  education  of  his  children.  He  had 'inher- 
ited a  property  of  some  eight  hundred  acres  at 
Bedford,  Westchester  County,  forty  miles  from 
New  York,  which  had  fallen  to  his  mother's 
share  on  the  partition  of  the  old  Van  Cortlandt 
estate.  To  this  he  had  added  by  purchases 
from  his  brothers :  here  for  some  years  he  had 
been  repairing  and  -  building  additions  to  the 
dwelling-house,  and  now  with  his  family  he 
retired  to  this  new  home,  where  he  lived  contin- 
uously for  the  remaining  twenty-eight  years  of 
his  life. 

No  sooner,  however,  was  the  cup  of  happiness 
at  his  lips  than  it  was  dashed  to  the  ground ; 
for  within  a  year  he  had  to  mourn  the  death  of 


IN  RETIREMENT.  341 

his  dearly  beloved  wife.  Since  their  marriage 
they  had  been  pained  by  constant  separations, 
but  their  love  for  each  other  had  ever  been  so 
great  as  to  provoke  the  gentle  raillery  of  their 
friends,  and  to  the  day  of  her  death  Jay  had  not 
come  to  sink  the  lover  in  the  husband.  "  Tell 
me,"  he  wrote  to  her  not  many  years  before, 
referring  to  her  eyes  that  he  had  not  gazed  on 
for  months,  "tell  me,  are  they  as  bright  as 
ever  ?  "  and  her  letters  to  him  were  always  what 
she  was  fond  of  calling  them,  "  little  messengers 
of  love." 

His  loneliness,  fortunately,  was  lightened  by 
the  presence  of  his  children:  Ann,  who  never 
married  and  in  disposition  was  extremely  like 
her  father,  now  just  growing  into  womanhood  ; 
William,  a  serious,  studious  lad  of  thirteen 
years ;  and  Sarah,  a  pretty  little  girl,  who  was 
to  die  unmarried  when  only  twenty-six  years  of 
age.  In  1806  an  older  daughter,  Maria  Banyer, 
joined  the  family  group  on  her  husband's  death, 
bringing  with  her  a  charming  little  child,  who 
also  soon  passed  away.  Mrs.  Banyer  and  Miss 
Jay  lived  afterwards  a  long,  gentle  life  of  quiet 
benevolence  in  New  York  ;  there  were  few  works 
of  charity  in  which  they  had  not  a  part ;  and 
they  were  the  fairy  godmothers  of  countless 
young  nephews  and  nieces. 

For  a  time  the  household   at  Bedford  must 


342  JOHN  JAY. 

have  been  a  somewhat  sad  one,  but  gradually 
Jay  found  content  and  happiness  in  the  simple 
country  life,  with  its  regular  and  early  hours, 
with  experiments  in  farming  and  horticulture, 
with  a  little  reading,  frequent  correspondence 
with  Wilberforce  in  England,  Lafayette  and 
Vaughan  in  France,  and  Judge  Peters  in  Phila- 
delphia, and  occasional  visits  from  old  friends 
who  lived  within  a  few  days'  drive.  "  My  ex- 
pectations from  retirement,"  he  was  soon  able 
to  say,  "  have  not  been  disappointed,  and  had 
Mrs.  Jay  continued  with  me,  I  should  deem  this 
the  most  agreeable  part  of  my  life.  The  post, 
once  a  week,  brings  me  our  newspapers,  which 
furnish  a  history  of  the  times."  .  .  .  "Atten- 
tion to  little  improvements,  occasional  visits,  the 
history  which  my  recollections  furnish,  and  fre- 
quent conversation  with  the  '  mighty  dead,'  who, 
in  a  certain  sense,  live  in  their  works,  together 
with  the  succession  of  ordinary  occurrences,  pre- 
serve me  from  ennui.  .  .  .  Party  feuds  give  me 
concern  ;  but  they  seldom  obtrude  upon  me." 

"  My  farm,"  he  wrote  to  Judge  Peters,  "  was 
from  its  first  settlement  occupied  by  tenants. 
They  have  left  no  trees  fit  for  rails ;  nor  can  I 
obtain  a  supply  in  this  neighborhood.  The 
stones  they  could  not  destroy,  and  they  are  the 
only  materials  I  have  for  fence.  With  some  ex- 
pense I  had  collected  and  formed  a  flock  [of 


IN  RETIREMENT.  343 

sheep]  which  pleased  me,  but  the  unceasing  care 
and  trouble  of  keeping  them,  induced  me  to  sell 
them,  and  to  buy  what  are  here  called  otter 
sheep.  They  have  short,  crooked  legs,  and  are 
no  beauties,  .  .  .  but  they  are  orderly  and  stay 
at  home,  and  that  is  more  than  can  be  said  of 
most  beauties." l  To  Washington,  at  Mount 
Vernon,  he  had  written  about  the  wisdom  of  in- 
troducing a  breed  of  mules.  With  others  he 
discussed  a  new  kind  of  rye,  and  the  novel  use 
of  plaster  for  manuring.  "A  frost  took  my 
watermelons  when  they  were  about  as  large  as  a 
marble,"  he  wrote  to  Judge  Peters,  who,  though 
still  occupying  the  bench  at  an  advanced  age, 
shared  Jay's  interest  in  agriculture.  "They 
turned  black,  and  dropped  off.  The  ends  of  the 
vines  began  to  die,  and  continued  to  do  so  for 
some  days,  I  then  had  the  vines  cut  below  the 
mortified  part,  and  the  whole  well  sprinkled  with 
piaster.  They  recovered,  and  brought  some, 
though  not  much,  fruit  to  perfection.  I  believe," 
he  continued,  "  that  you  and  I  derive  more  real 
satisfaction  from  attending  to  our  vines  and 
fruit  trees  than  most  conquerors  from  cultivat- 
ing their  favourite  laurels."  2 

Many   trees,   elms    and   maples,    he   planted 
about  Bedford ;  indeed,  several  years  earlier,  in 

1  Nov.  21,  1810. 

2  Feb.  26,  1810,  Jay's  Jay,  ii.  323. 


344  JOHN  JAY. 

sending  some  mulberry  trees  to  his  son  Peter, 
he  became  almost  enthusiastic  over  what  he 
called  this  "  innocent  and  rational  amusement." 
"  It  always  gives  me  pleasure  to  see  trees  which 
I  have  reared  and  planted,"  he  said,  "  and  there- 
fore I  recommend  it  to  you  to  do  the  same.  .  .  . 
My  father  planted  many  trees,  and  I  never  walk 
in  their  shade  without  deriving  additional  pleas- 
ure from  that  circumstance.  The  time  will 
probably  come  when  you  will  experience  similar 
emotions."  l 

He  was  always  fond  of  animals,  and  unusually 
kind  to  them.  In  1783,  amid  the  cares  and 
anxieties  of  the  negotiations,  he  was  mindful  to 
write  to  his  son :  "If  my  old  mare  is  alive,  I 
must  beg  of  you  and  my  brother  to  take  very 
good  care  of  her.  I  mean  that  she  should  be 
well  fed  and  live  idle,  unless  my  brother  Peter 
should  choose  to  use  her.  If  it  should  be  neces- 
sary to  advance  money  to  recover  her,  I  am  con- 
tent you  should  do  it  even  to  the  amount  of 
double  her  value."  It  was  probably  of  another 
mare  that  he  wrote  to  Judge  Peters,  in  1811  : 
"  There  was  a  mare  belonging  to  my  father, 
which  I  rode  as  soon  as  I  could  ride.  She  was 
a  favorite,  and  often  carried  me  to  and  from 
school.  Of  her  stock  I  have  always  had  saddle 
horses.  Those  which  I  selected  for  that  pur- 
1  April  25,  1792,  Jay  MSS. 


IN  RETIREMENT.  345 

pose  remained  mine  as  long  as  they  lived ;  and 
the  remembrance  of  them  recalls  that  of  agree- 
able days  and  incidents.  The  one  I  now  have 
is  above  twenty  years  old,  and,  though  of  little 
real  value,  has  more  of  my  particular  care  and 
attention  than  any  of  the  others  of  whatever 
price.  This  kind  of  favoritism  or  predilection 
may  not  be  philosophical,  but  it  is  innocent 
and  pleasing,  and  I  indulge  it.  ...  It  is  a 
rainy  afternoon,  I  have  written  a  long  letter, 
and  should  probably  continue  to  amuse  my- 
self in  writing  on  to  the  next  page,  but  it  is 
now  so  dark  that  I  can  hardly  read  what  I 
write." l 

He  was  frequently  written  to  for  advice  on 
public  or  semi-public  questions,  and  always  re- 
sponded with  habitual  frankness  and  common 
sense.  William  Wilberforce  requested  his  views 
about  the  Reform  Bill,  which  he  was  agitating 
in  Parliament.  "  Wise  and  good  borough-hold- 
ers, like  wise  and  good  kings,"  replied  Jay, 
"  doubtless  wish  and  endeavor  to  make  the  best 
appointments;  but  ought  either  borough  -  hold- 
ers or  kings  to  appoint  representatives  for  the 
nation?"2 

A  company  at  Mamaroneck  applied  to  the 
legislature  for  authority  to  increase  its  water 

1  Oct.  16, 1811,  Jay  MSS. 

2  Oct.  25,  1810,  Jay's  Jay,  ii.  331. 


346  JOHN  JAY. 

supply  by  overflowing  adjacent  land  compulso- 
rily  on  payment  of  damages.  Jay  indignantly 
asserted  legal  principles,  which,  perhaps,  have 
been  too  little  considered  by  subsequent  legisla- 
tures. "  When  a  piece  of  ground  is  wanted  for 
a  use  important  to  the  State,  I  know,"  he  said, 
"the  State  has  a  right  to  take  it  from  the  owner 
on  paying  the  full  value  of  it ;  but  certainly  the 
legislature  has  no  right  to  compel  a  freeholder 
to  part  with  his  land  to  any  of  his  fellow-cit- 
izens, nor  to  deprive  him  of  the  use  of  it,  in 
order  to  accommodate  one  or  more  of  his  neigh- 
bors in  the  prosecution  of  their  particular  trade 
or  business.  Such  an  act,  by  violating  the  rights 
of  property,  would  be  a  most  dangerous  prec- 
edent." ! 

The  governor  of  Ohio  submitted  to  him  some 
plans  for  taxation :  "  However  extensive  the 
constitutional  power  of  a  government  to  impose 
taxes  may  be,"  was  Jay's  reply,  "  I  think  it 
should  not  be  so  exercised  as  to  impede  or  dis- 
courage the  lawful  and  useful  industry  and  ex- 
ertions of  individuals.  Hence,  the  prudence  of 
taxing  the  products  of  beneficial  labor,  either 
mental  or  manual,  appears  to  be  at  least  ques- 
tionable. .  .  .  Whether  taxation  should  extend 
only  to  property,  or  only  to  income,  are  points 
on  which  opinions  have  not '  been  uniform.  I 
1  To  Peter  Jay  Munroe,  March  2,  1812,  Jay  MSS. 


IN  RETIREMENT.  347 

am  inclined  to  think  that  both  should  not  be 
taxed."  ! 

A  pamphlet  was  sent  him  on  "  The  Missouri 
Question,"  in  1819,  and  in  acknowledging  it  he 
expressed  his  own  very  decided  opinion  :  "  The 
obvious  dictates  both  of  morality  and  policy 
teach  us,  that  our  free  nation  cannot  encourage 
the  extension  of  slavery,  nor  the  multiplication 
of  slaves,  without  doing  violence  to  their  prin- 
ciples, and  without  depressing  their  power  and 
prosperity."  2 

In  politics  Jay  studiously  avoided  taking  any 
active  part,  though  he  performed  his  duties  as  a 
citizen  with  unostentatious  punctuality,  and  con- 
tinued as  ever  to  take  keen  interest  in  affairs. 
"He  read  the  papers  constantly,"  said  Judge 
William  Jay,  contradicting  a  report  to  the  con- 
trary, "  and  at  times  took  papers  of  opposite  pol- 
itics, that  he  might  obtain  more  full  information 
of  passing  events."  3  "  The  proprieties  attached 
to  a  situation  like  mine,"  wrote  Jay  to  Picker- 
ing in  1808,  "  assign  certain  limits  to  active 
interferences  in  political  concerns.  I  attend 
every  election,  even  for  town  officers,  and,  hav- 
ing delivered  my  ballots,  return  home,  without 

1  To  E.  A.  Brown,  Gov.  of  Ohio,  April  30,  1821,  Jay's  Jay, 
ii.  420,  421. 

2  To  Daniel  Raymond,  Dec.  21,  1819,  Jay's  Jay,  ii.  406. 
8  Hammond,  Pol.  Hist,  of  N.  Y.,  i.  155,  note. 


348  JOHN  JAY. 

having  mingled  in  the  crowd  or  participated  in 
their  altercations."  1 

To  Jay,  as  to  most  of  the  older  Federalists, 
the  War  of  1812  seemed  ill-advised.  He  said  : 
"In  my  opinion,  the  declaration  of  war  was 
neither  necessary,  nor  expedient,  nor  reason- 
able ;  and  I  think  that  they  who  entertain  this 
opinion  do  well  in  expressing  it,  both  individu- 
ally and  collectively ; "  but  he  added  this  impor- 
tant qualification  :  "  As  the  war  has  been  con- 
stitutionally declared,  the  people  are  evidently 
bound  to  support  it  in  the  manner  which  consti- 
tutional laws  do  or  shall  prescribe."  2  He  ac- 
cordingly for  the  time  joined  that  section  of  the 
Federalists  known  as  the  Peace  Party ;  but  he 
was  no  partisan,  and  when  the  party  nominated 
for  assemblyman,  from  Westchester  County,  a 
man  of  objectionable  private  character,  Jay  and 
his  friends  promptly  joined  in  defeating  him. 
In  vindicating  his  action,  he  laid  down  the 
ethical  rules  that  should  determine  obligation  to 
one's  party,  rules  of  general  application,  but 
which  in  these  days  would  be  stigmatized  as  the 
unpractical  notions  of  a  doctrinaire  or  "  Mug- 
wump." "  We  approve,"  he  said,  "  of  the  cus- 
tomary mode  of  nominating  candidates,  and  have 
uniformly  concurred  in  it ;  that  concurrence  cer- 

1  Dec.  24,  1808,  Jay  MSS. 

2  July  28,  1812,  Jay's  Jay,  i.  445. 


IN  RETIREMENT. .  349 

tainly  involved  our  tacit  assent  to  be  bound  by 
the  nominations  which  should  be  so  made.  But 
it  is  equally  certain  that  such  consent  did,  does, 
and  ever  will  rest  on  the  condition,  trust,  and 
confidence  that  such  nominations  only  be  made 
as  we  co aid  or  can  support,  without  transgress- 
ing the  obligations  we  are  under  to  preserve  our 
characters  and  our  minds  free  from  humiliation 
and  reproach.  .  .  .  Adherence  to  party  has  its 
limits,  and  they  are  prescribed  and  marked  by 
that  Supreme  Wisdom  which  has .  united  and 
associated  true  policy  with  rectitude,  and  hon- 
our, and  self-respect."  1 

In  1815  Jay  became  president  of  the  West- 
chester  Bible  Society ;  the  next  year,  on  the 
organization  of  the  American  Bible  Society,  he 
was  appointed  one  of  its  vice-presidents,  and,  on 
the  death  of  Elias  Boudinot  in  1821,  its  presi- 
dent. He  was  also  a  member  of  the  Tract  and 
Sunday-school  societies,  and  of  that  for  educat- 
ing pious  youth  for  the  ministry.  In  1814,  he 
was  elected  a  member  of  the  American  Anti- 
quarian Society. 

Jay's  health  had  always  been  delicate:  now, 
in  his  later  years,  he  was  seldom  free  from 
attacks  of  rheumatism,  or  some  disorder  of  the 
liver,  but  the  most  serious  ailment  of  all  was 
what  he  termed  "  the  incurable  "  one  of  old  age. 

1  Jay's  Jay,  i.  449. 


350  JOHN  JAY. 

In  1813  Gouverneur  Morris  asked  him  to  be- 
come godfather  to  his  son  :  "  True  it  is  that  you 
may  not  be  able  to  perform  the  duties  of  that 
office ;  but,  my  friend,  should  you  be  mingled 
with  the  dust,  he  shall  learn  from  the  history  of 
your  life,  that  a  man  must  be  truly  pious  to  be 
truly  great."1  But  Jay  felt  bound  to  decline 
on  the  ground  of  old  age  ;  "as  I  expect,"  he 
said,  "  to  remove  at  a  more  early  period  to  a 
distant  country,  where  I  shall  not  be  in  a  capac- 
ity to  attend  to  persons  or  things  here."  2 

In  1814  he  was  invited  by  Rufus  King  to 
join  their  friends  in  the  city  "  in  the  -proposed 
celebration  of  the  overthrow  and  repulsion  of 
Bonaparte ; "  but  he  regretted  that  his  health 
prevented  his  presence  on  "  so  joyful  an  occa- 
sion." 3  In  1821  a  note  in  the  third  volume  of 
Franklin's  Works,  then  just  published,  that  the 
editor  had  consulted  journals  kept  by  Jay  and 
Adams  concerning  the  peace  negotiations,  led 
the  two  old  friends  once  more  to  exchange  let- 
ters. The  note  was  of  course  erroneous.  There 
was,  however,  something  touching  in  the  greet- 
ing of  these  aged  men.  "  I  too  am  feeble  and 
confined  to  the  house  the  greater  part  of  the 
winter,"  wrote  Adams,  "  but  I  hope  to  crawl 

1  Feb.  15,  1813,  Jay's  Jay,  ii.  355. 

2  Ibid.,  p.  356. 

3  June  23,  1814,  Jay  MSS. 


IN  RETIREMENT.  351 

out  like  a  turtle  in  the  spring ;  your  chirog- 
raphy  gives  me  full  assurance  that  you  will  be 
on  horseback  before  that  time."  1  "  For  twelve 
years  past,"  wrote  Jay,  "I  have  not  had  one 
well  day.  ...  It  rarely  happens  that  the  mal- 
adies and  infirmities  which  generally  accom- 
pany old  age  will  yield  to  medical  skill ;  but 
happily  for  us  patience  and  resignation  are 
excellent  palliatives."  2  "I  hope,"  replied  Ad- 
ams, "  you  will  be  a  member  of  the  conven- 
tion in  New  York  [for  the  revision  of  the  Con- 
stitution]. It  will  want  some  such  heart-of-oak 
pillar  to  support  the  temple."  3  But  the  old 
statesman  was  not  called  on  to  attend  the  con- 
vention, though  his  son,  Peter  Augustus,  was  a 
delegate. 

Occasional  visits  from  friends  to  Bedford 
cheered  Jay's  declining  years.  Then,  as  he 
smoked  his  long  clay  pipe,  he  used  to  delight 
in  telling  anecdotes  of  the  Eevolution,  the  true 
history  of  which  he  often  said  never  had  been 
and  never  would  be  written.  Of  such  conversa- 
tions, unfortunately,  there  is  but  scanty  record. 
His  opinion  of  the  Second  Continental  Con- 
gress, expressed  to  Gouverneur  Morris,  has  been 
already  quoted ;  and  Fenimore  Cooper  was  so 
impressed  by  hearing  from  his  lips  a  story  of 
his  own  experience  as  to  make  it  the  ground- 
1  March  6,  1821.  2  May  7,  1821.  8  May  13,  1821. 


352  JOHN  JAY. 

work  of  "  The  Spy."  Jay  was  speaking  of  the 
heroism  and  patriotism  shown  during  the  Eevo- 
lution  by  men  in  humble  life  and  little  learning. 
When  on  a  secret  committee  to  prevent  the 
enlistment  of  troops  in  Westchester  County  by 
the  British,  he  had  occasion  to  employ  a  poor 
man,  "  but  cool,  shrewd,  and  fearless,"  to  act  the 
part  of  a  spy.  "It  was  his  office  to  learn  in 
what  part  of  the  country  the  agents  of  the  crown 
were  making  their  efforts  to  embody  men,  to 
repair  to  the  place,  enlist,  appear  zealous  in  the 
cause  he  affected  to  serve,  and  otherwise  to  get 
possession  of  as  many  of  the  secrets  of  the  en- 
emy as  possible."  He  ran  the  risk  not  only  of 
discovery  by  the  English  but  of  falling  into  the 
hands  of  his  fellow-countrymen.  Frequently  he 
was  arrested  by  the  local  authorities  and  once 
he  was  condemned  to  the  gallows,  and  was  saved 
only  just  in  time  by  private  orders  to  his  jailer. 
"  By  the  Americans  in  his  little  sphere  he  was 
denounced  as  a  bold  and  inveterate  Tory." 
Thus  he  continued  to  serve  his  country  in  secret 
during  the  early  years  of  the  Re  volution.  Jay, 
on  being  appointed  to  Spain,  reported  an  out- 
line of  the  facts  to  Congress  and  obtained  an 
appropriation  for  his  agent,  without  revealing  his 
name  ;  and  undertook  to  deliver  the  money  per- 
sonally. They  met  in  a  wood  at  midnight.  Jay 
praised  his  companion  for  his  fidelity  and  adroit- 


IN  RETIREMENT.  353 

ness,  and  finally  tendered  the  money;  but  the 
man  drew  back  and  refused  to  receive  it.  "  The 
country  has  need  of  all  its  means,"  he  said ;  "  as 
for  myself,  I  can  work,  or  gain  a  livelihood  in 
various  ways." l 

In  the  spring  of  1818  Peter  van  Schaack  and 
Judge  Egbert  Benson  "  went  from  Kinderhook 
to  Bedford,  in  the  Judge's  one-horse  wagon,  .  .  . 
to  visit  their  mutual  and  bosom  friend,  Mr.  Jay. 
They  were  both,  at  this  time,  upwards  of  sev- 
enty."2 "A  happy  new  year,"  wrote  Van 
Schaack,  at  the  dawn  of  1826.  "You  have 
passed  fourscore,  and  I  am  but  a  few  months 
from  it.  Benson  is  between  us,  and  I  shall 
soon  be  followed  by  Harrison,  Watts,  and  Rut- 
gers. These  I  believe  are  all  that  survive  of  our 
college  contemporaries.  JVbs  turba  sumus" 3 
Two  years  later,  in  an  address  before  the  New 
York  Historical  Society,  Judge  Kent  referred 
to  Jay  as  the  sole  survivor  of  those  who  sat  in 
the  First  Continental  Congress.  The  next  year 
Jay  joined  the  rest  of  that  "memorable  con- 
vention." 

"  For  many  months  before  his  death  he  was 
unable  to  walk  without  assistance.  During  the 
day  he  passed  much  of  the  time  in  his  own 

1  J.  Fenimore  Cooper,  Introduction  to  The  Spy. 

2  Life  of  Peter  van  Schaack,  p.  451. 
8  Ibid.,  p.  458. 


354  JOHN  JAY. 

room  ;  the  evenings  were  spent  with  his  children 
and  guests,  partly  in  conversation,  and  partly  in 
listening  to  books  which  were  read  aloud  by  one 
of  the  family.  Unable  to  attend  church,  he  oc- 
casionally had  the  Lord's  Supper  administered 
to  him  in  his  chamber."  In  the  night  of  May 
14,  1829,  he  had  an  attack  of  palsy,  and  on  the 
17th  he  died.  In  his  will  he  remembered  his 
servants,  and  gave  his  gold  watch  to  his  special 
attendant  ;  he  directed  that  there  should  be  "  no 
scarfs,  no  rings,"  provided  at  the  funeral ;  "  in- 
stead thereof  I  give  two  hundred  dollars  to  any 
one  poor  deserving  widow  or  orphan  of  this  town, 
whom  my  children  shall  select."  The  funeral 
services  were  held  at  Bedford,  but  he  was  buried 
in  the  family  graveyard  at  Rye.  In  New  York 
the  courts  were  in  session,  and  brief  eulogies 
were  delivered  by  the  presiding  judges  on  news 
of  the  decease  of  the  late  chief  justice.  "  Few 
men  in  any  country,  perhaps  scarce  one  in  this," 
said  chief  justice  Jones  at  the  opening  of  the 
Superior  Court,  "  have  filled  a  larger  space,  and 
few  ever  passed  through  life  with  such  perfect 
purity,  integrity,  and  honour."  l 

Jay's  principles  of  conduct  were  so  unvarying, 
and  his  actions  so  consistent  with  them  and  with 
one  another,  that  the  most  careless  reader  of  his 
life,  if  it  has  been  fairly  presented,  must  be  al- 

1  Mirror,  May  30,  1829. 


IN  RETIREMENT.  355 

ready  familiar  with  the  dignified  and  simple 
character  of  the  man.  Everything  he  did  seems 
to  have  been  inspired  by  a  keen  sense  of  imper- 
sonal moral  duty.  He  might  for  a  time  be  un- 
certain as  to  what  this  duty  was,  but  the  mo- 
ment it  was  clear  to  him,  he  acted  accordingly, 
promptly,  fearlessly,  without  regard  to  personal 
considerations,  undeterred  by  the  consequences 
to  his  friends  or  his  family.  It  was  this  single- 
ness and  uprightness  of  purpose,  and  the  firm- 
ness with  which  he  adhered  to  it,  that  made 
Adams  call  him  "  a  Koman."  In  disposition  he 
was  more  like  an  ancient  hero,  such  as  Cato,  than 
he  was  like  any  of  his  contemporaries ;  but 
where  the  Koman  found  moral  inspiration  in 
philosophy,  Jay  found  both  inspiration  and  great 
comfort  and  happiness  in  religion.  It  was  one 
of  his  favorite  remarks,  that  if  men  would  never 
forget  that  the  world  was  under  the  guidance  of 
a  Providence  which  never  erred,  it  would  save 
much  useless  anxiety,  and  prevent  a  great  many 
mistakes.  This  optimistic  fatalism,  if  one  may 
so  term  it,  produced  in  Jay  a  singular  serenity 
of  temper.  When  he  had  done  what  he  con- 
ceived to  be  his  duty,  he  was  satisfied  that  all 
was  for  the  best  and  was  undistracted  by  pop- 
ular applause  or  condemnation. 

Such  complete  self-dependence  and  self-con- 
trol are  generally  held  by  the  world  at  large  to 


356  JOHN  JAY. 

be  somewhat  unamiable  qualities ;  and  many 
have  doubtless  deemed  Jay,  in  consequence,  a 
cold,  austere  man,  with  all  the  classic  virtues, 
but  also  with  much  of  classic  remoteness  from 
ordinary  humanity.  Such,  however,  is  very  far 
from  truth.  No  man  in  his  day  had  warmer, 
truer,  or  more  constant  friends.  There  were 
few  who  were  nearer  to  the  heart  of  Washing- 
ton. Hamilton  from  early  youth  admired  and 
trusted  him.  He  won  even  the  affection  of  those 
who,  like  Alexander  McDougall  and  John 
Adams,  began  by  misunderstanding  him.  His 
friendship  with  Franklin  was  unaffected  by  their 
differences  at  the  negotiation  of  the  peace  ;  and 
his  friendship  with  Peter  van  Schaack  seemed 
to  be  only  strengthened  by  the  sternness  of  his 
judgment  in  the  Secret  Committee.  Even  Cap- 
tain Paul  Jones  wrote  from  Paris :  "  As  there  is 
no  man  who  inspires  me  with  more  esteem  than 
yourself,  I  beg  you  to  accept  my  bust  as  a  mark 
of  my  affection  ;  " 1  and  it  must  have  been  a 
lovable  character,  indeed,  to  whom  Gouverneur 
Morris  would  have  sent  this  brief  note  across 
the  sea :  — 

"  DEAR  SIR,  —  It  is  now  within  a  few  min- 
utes of  the  time  when  the  mail  is  made  up  and 
sent  off.     I  cannot  therefore  do  more  than  just 
1  Feb.  8, 1787,  Jay  MSS. 


IN  RETIREMENT.  357 

to  assure  you  of  the  continuance  of  my  love. 
Adieu.  Yours,  Gouv.  MORRIS."  l 

"  To  see  things  as  they  are,  to  estimate  them 
aright,  and  to  act  accordingly,  is  to  be  wise," 
Jay  once  wrote  to  Wilberforce  ; 2  and  this  say- 
ing he  repeated  again,  with  the  addition :  "  to 
do  this  effectually,  self-command  is  absolutely 
indispensable.  To  look  at  objects  through  our 
passions  is  like  seeing  through  colored  glass, 
which  always  paints  what  we  view  in  its  own 
and  not  in  the  true  color."  3  "  To  avoid  mis- 
takes," he  said  again,  "  it  is  necessary  to  see 
things  as  they  really  are.  Minutiae  are  often 
omitted,  or  imperfectly  drawn  in  representations. 
Great  part  of  the  good  within  our  reach  depends 
on  minutia3 ;  they  merit  more  attention  than 
many  apprehend."4  Here  is  to  be  found  the 
secret  of  Jay's  great  success  as  a  compromiser 
and  negotiator.  Without  prejudice,  he  would 
proceed  carefully  to  examine  all  the  facts,  and 
then  it  would  seldom  happen  that  they  would 
not  suggest  a  course  of  action  at  once  obvious 
and  mutually  satisfactory. 

He  was  eminently  prudent,  discreet,  wary,  and, 

1  Nov.  7,  1783,  Jay  MSS. 

2  Nov.  3,  1809,  Jay's  Jay,  ii.  320. 
8  Jay's  Jay,  ii.  429. 

*  To  B.  Vaughan,  March  21,  1784,  Jay  MSS. 


358  JOHN  JAY. 

though  conscientiously  truthful,  averse  to  say- 
ing more  than  was  necessary.  Prudence  was  a 
virtue  inherited  from  his  father,  and  he  handed 
on  the  tradition  to  his  children.  "  The  longer 
we  live,  and  observe  what  passes  in  the  world," 
he  said,  "the  more  we  become  sensible  ot  the 
value  and  of  the  necessity  of  prudence."  1  The 
lesson  was  verified  by  the  misunderstandings  of 
the  factions  at  the  beginning  of  the  Kevolution, 
by  the  false  constructions  put  on  language  by 
the  anti-Federalist  and  Democratic  demagogues 
and  newspapers.  As  he  became  old  the  habit 
of  reticence  grew  upon  him ;  but  it  had  always 
been  a  personal  characteristic,  as  is  shown  by  an 
anecdote  that  Colonel  Troup  used  to  tell.  "  '  Let 
us  ride  over,'  said  General  Gates  to  Troup,  soon 
after  the  surrender  of  Burgoyne,  '  and  see  the 
chief  justice '  [who  was  then  at  Fishkill]  ;  '  I 
wish  to  learn  his  opinion  of  our  late  Saratoga 
Convention.'  They  went ;  and  during  a  two 
hours'  visit  Gates  labored  in  vain  to  draw  from 
Mr.  Jay  some  favorable  opinion  of  that  military 
mistake.  Finding  himself  ever  baffled,  he  at 
length  ventured  upon  the  direct  question :  '  Pray, 
Mr.  chief  justice,  do  you  not  think  the  Sara- 
toga convention  a  good  convention  ?  '  '  Un- 
questionably, my  dear  general,'  was  the  ready 
reply,  'provided  you  could  not  have  made  a 

1  From  Letters  to  his  Children,  Jay's  Jay,  ii.  428. 


IN  RETIREMENT.  359 

better.'  'Come,'  said  the  general  to  his  com- 
panion, 4  it  is  time  for  us  to  go.'  "  1  Professor 
McVickar,  of  Columbia  College,  whose  sister 
had  married  William  Jay,  and  who  was  ever  a 
welcome  visitor  at  Bedford,  relates  a  similar  ex- 
perience with  Jay  in  his  later  years.  Once,  with 
some  pertinacity,  he  pressed  the  old  gentleman 
for  an  opinion  on  the  authenticity  of  Washing- 
ton's Farewell  Address.  The  discovery  of  a 
copy  of  it  among  Hamilton's  papers  in  his  hand- 
writing, had  raised  the  question  of  its  author- 
ship, which,  as  a  matter  of  fact,  was  settled  by 
Jay's  statement  that  the  address  had  been  sub- 
mitted to  him  and  Hamilton  for  suggestions  and 
amendments,  and  not  wishing  to  spoil  Washing- 
ton's fair  manuscript,  they  had  made  their  notes 
on  a  copy.2  "  When,"  said  McVickar,  "  the 
slow-puffing  pipe  and  the  deaf  ear  turned  were 
no  longer  an  apology  for  not  hearing,  the  an- 
swer came  out  with  a  quiet  smile :  '  My  opinion, 
my  dear  sir,  you  shall  freely  have.  I  have  al- 
ways thought  General  Washington  competent 
to  write  his  own  addresses.'  "  3 

With  such  a  disposition  Jay  was  inevitably  a 
moderate  man,  choosing,  whenever  possible,  the 
middle  way  between  extremes,  selecting  the 

1  Professor  John  McVickar,  in  N.  Y.  Review,  Oct.,  1841. 

2  To  Judge  Peters,  March  29,  1811,  Jay's  Jay,  ii.  345. 
8  Ibid. 


360  JOHN  JAY. 

course  that  his  judgment  commended,  indepen- 
dent of  the  dogmas  of  creed  or  party,  even  in 
religious  questions.  "In  forming  and  settling 
my  belief  relative  to  the  doctrines  of  Christian- 
ity," he  wrote  to  a  clergyman,  "  I  adopted  no 
articles  from  creeds,  but  such  only  as,  on  care- 
ful examination,  I  found  to  be  confirmed  by  the 
Bible."  1  Towards  religious  views  different  from 
his  own  he  was  very  tolerant,  but  he  had  no  tol- 
eration for  atheists.  At  a  party  in  Paris  once 
the  conversation  fell  on  religion.  "  In  the  course 
of  it,"  said  Jay,  "  one  of  them  asked  me  if  I  be- 
lieved in  Christ  ?  I  answered  that  I  did,  and 
that  I  thanked  God  that  I  did.  Nothing  fur- 
ther passed  between  me  and  them,  or  any  of 
them  on  that  subject."  Some  time  afterward 
an  English  physician,  attending  one  of  the  fam- 
ily, "  during  one  of  his  visits  very  abruptly  re- 
marked, that  there  was  no  God,  and  he  hoped 
the  time  would  come  when  there  would  be  no  re- 
ligion in  the  world.  I  very  concisely  remarked 
that  if  there  was  no  God,  there  could  be  no 
moral  obligations,  and  I  did  not  see  how  society 
could  exist  without  them.  He  did  not  hesitate 
to  admit  that,  if  there  was  no  God,  there  could 
be  no  moral  obligations,  but  insisted  that  they 
were  not  necessary,  for  that  society  would  find  a 
substitute  for  them  in  enlightened  self-interest. 
1  To  Rev.  Samuel  Miller,  February  10,  1822,  Jay  MSS. 


IN  RETIREMENT.  361 

I  soon  turned  the  conversation  to  another  topic, 
and  he,  probably  perceiving  that  his  sentiments 
met  with  a  cold  reception,  did  not  afterward  re- 
sume the  subject." l 

In  politics,  as  has  been  noted,  Jay  preserved 
his  independence  of  action  ;  but  his  own  declara- 
tion may  be  worth  quoting :  "In  the  course  of 
my  public  life  I  have  endeavored  to  be  uniform 
and  independent,  having,  from  the  beginning  of 
it  in  1774,  never  asked  for  an  office  or  a  vote, 
nor  declined  expressing  my  sentiments  respect- 
ing such  important  public  measures  as,  in  my 
opinion,  tended  to  promote  or  retard  the  welfare 
of  our  country."2  Frequently  such  outspoken 
opinions  required  no  little  courage ;  but  he  did 
not  hesitate  to  condemn  the  popular  confiscation 
acts,  to  urge  the  abolition  of  slavery,  and  to  de- 
clare his  honest  opinion  about  the  French  Eevo- 
lution ;  and  yet,  as  has  been  seen,  his  opinions 
on  all  these  questions  were  in  no  sense  extreme. 
The  experiences  that  usually  blind  men's  eyes 
and  prejudice  their  judgment  left  him  clear- 
sighted and  fair-minded.  Even  the  throes  of 
the  Revolution  did  not  make  him  unjust  to  Eng- 
land. "  I  view  a  return  to  the  domination  of 
Britain  with  horror,"  he  wrote  in  1778,  "  and 
would  risk  all  for  independence  ;  but  that  point 

1  To  John  Bristed,  April  23, 1811,  Jay's  Jay,  ii.  346,  347. 

2  Jay's  Jay,  ii.  419. 


362  JOHN  JAY. 

ceded,  I  would  give  them  advantageous  commer- 
cial terms.  The  destruction  of  Old  England 
would  hurt  me ;  I  wish  it  well ;  it  afforded  my 
ancestors  an  asylum  from  persecution." 1 

His  integrity,  strength  of  character,  and  fair- 
ness made  Jay  admirably  suited  to  a  judicial 
career.  How  painstaking  he  was  to  keep  him- 
self wholly  free  from  improper  influence  is  well 
seen  in  his  letter  to  Trumbull,  who  had  just 
been  appointed  a  commissioner  under  the  treaty 
of  1794.  "  Firmness,  ...  as  well  as  integrity 
and  caution,  will  be  requisite  to  explore  and  per- 
severe in  the  path  of  justice.  They  who,  in  fol- 
lowing her  footsteps,  tread  on  popular  preju- 
dices, or  crush  the  schemes  of  individuals,  must 
expect  clamour  and  resentment.  The  best  way 
to  prevent  being  perplexed  by  considerations  of 
that  kind  is  to  dismiss  them  all,  and  never  to 
permit  the  mind  to  dwell  upon  them  for  a 
moment.  .  .  .  Although  a  judge  may  possess  the 
best  talents  and  the  purest  intentions,  yet  let 
him  keep  a  jealous  eye  over  his  sensibilities  and 
attachments,  lest  they  imperceptibly  give  to 
error  too  near  a  resemblance  to  truth.  Nay,  let 
him  even  watch  over  that  jealousy,  for  the 
apprehension  of  being  thought  partial  to  one 
side  has  a  tendency  to  incline  a  delicate  mind 
towards  the  other."  3 

1  To  Gouverneur  Morris,  April  29,  1778,  Jay's  Jay,  ii.  24. 

2  To  John  Trumbull,  Oct  20,  1796,  Jay  MSS. 


IN  RETIREMENT.  363 

Jay  was  frequently  accused  of  being  an  aris- 
tocrat, of  not  being  in  full  sympathy  with  dem- 
ocratic institutions.  The  same  charge  was 
brought  against  Washington,  Adams,  and  the 
Federalists  generally,  as  a  party.  In  the  strict 
meaning  of  the  words,  perhaps,  it  may  be  ad- 
mitted that  Jay  was  a  republican  but  not  a 
democrat ;  but  in  this  he  was  in  agreement 
with  the  majority  of  the  thoughtful  men  of  his 
generation.  To  the  statesmen  of  the  eighteenth 
century  an  absolutely  democratic  government, 
with  manhood  suffrage,  and  with  all  power  in 
the  hands  of  the  majority,  was  something  un- 
known. What  precedents  there  were  in  the  his- 
tories of  Greece  and  Rome  seemed  to  show  that 
any  approximation  to  such  a  government  was 
full  of  danger  to  society,  and  never  permanent 
for  any  length  of  time ;  and  contemporary  events 
in  France  were  not  more  reassuring.  They 
were  practical  men,  not  theorists,  and  distrusted 
any  principle,  however  pleasing,  which  had  not 
been  long  tried  and  tested.  It  is  from  this 
point  of  view  that  many  of  Jay's  opinions 
should  be  considered.  "  As  to  the  position  that 
'the  people  always  mean  well,'  or,  in  other 
words,  that  they  always  mean  to  say  and  do 
what  they  believe  to  be  right  and  just,  —  it  may 
be  popular,  but  it  cannot  be  true.  The  word 
people  .  .  c  applies  to  all  the  individual  inhab- 


364  JOHN  JAY. 

itants  of  a  country.  .  .  .  That  portion  of  them 
who  individually  mean  well  never  was,  nor 
until  the  millenium  will  be,  considerable.'' l 
"  Pure  democracy,  like  pure  rum,  easily  pro- 
duces intoxication,  and  with  it  a  thousand  mad 
pranks  and  fooleries."2  Such  remarks,  how- 
ever, are  misleading,  unless  they  are  taken  in 
connection  with  Jay's  policy  as  a  whole.  For- 
tunately, he  stated  this  concisely  but  comprehen- 
sively in  a  letter  to  Vaughan  in  1797.  "  To  me 
it  appears  important  that  the  American  govern- 
ment be  preserved  as  it  is,  until  mature  expe- 
rience shall  very  plainly  point  out  very  useful 
amendments  to  our  Constitution  ;  that  we  stead- 
ily repel  all  foreign  influence  and  interference, 
and  with  good  faith  and  liberality  treat  all 
nations  as  friends  in  peace,  and  as  enemies  in 
war ;  neither  meddling  with  their  affairs,  nor 
permitting  them  to  meddle  with  ours.  These 
are  the  primary  objects  of  my  policy.  The  sec- 
ondary ones  are  more  numerous,  such  as  to  be 
always  prepared  for  war,  to  cultivate  peace,  to 
promote  religion,  industry,  tranquillity,  and  use- 
ful knowledge,  and  to  secure  to  all  the  quiet 
enjoyment  of  their  rights  by  wise  and  equal 
laws  irresistibly  executed.  I  do  not  expect  that 
mankind  will,  before  the  millennium,  be  what 

1  To  Judge  Peters,  March  14,  1815,  Jay's  Jay,  ii.  370. 

2  To  Judge  Peters,  July  24,  1809,  Jay  MSS. 


IN  RETIREMENT.  365 

they  ought  to  be  ;  and  therefore,  in  my  opinion, 
every  political  theory  which  does  not  regard 
them  as  being  what  they  are,  will  prove  abor- 
tive." 1  Such  a  policy  is  certainly  neither  nar- 
row nor  illiberal,  and  when  there  is  added  to 
it  the  following  declaration,  it  can  hardly  be 
termed  aristocratic  in  any  proper  meaning  of 
the  word :  "  I  wish  to  see  all  unjust  and  unne- 
cessary discriminations  everywhere  abolished, 
and  that  the  time  may  come  when  all  our  inhab- 
itants of  every  colour  and  discrimination  shall 
be  free  and  equal  partakers  of  our  political  lib- 
erty." 2 

The  type  of  man  that  is  now  regarded  as  dis- 
tinctively American,  and  the  watchwords,  glit- 
tering and  unscientific  generalities  for  the  most 
part,  which  are  often  upheld  as  comprehending 
the  whole  doctrine  of  American  policy,  origi- 
nated rather  in  the  ferment  of  the  French  Rev- 
olution than  in  that  of  which  Jay  was  a  leader. 
It  is  then,  perhaps,  not  without  interest  to  recall 
the  simple,  practical,  sturdy,  common-sense  prin- 
ciples, based  on  fact  and  history,  which  ani- 
mated that  earlier  generation,  and  made  their 
work  permanent  in  a  sense  almost  unexampled 
among  the  works  of  men. 

Even  in  the  minor  details  of  personal  attire 

1  Jay's  Jay,  ii.  232. 

2  To  Dr.  Rush,  March  24,  1785. 


366  JOHN  JAY. 

he  used  on  principle  a  democratic  simplicity. 
Once,  for  instance,  in  ordering  a  watch  and 
chain  for  Mrs.  Jay,  through  a  friend,  he  re- 
marked :  "  In  these  as  in  most  things  we  must 
be  guided  by  the  rules  of  propriety  which  one's 
situation  and  circumstances  dictate.  Neatness 
and  utility  is  all  I  ought  or  wish  to  aim  at  in 
dress  or  equipage,  and  perhaps  every  citizen  of 
a  republic  would  do  well  to  forbear  going  fur- 
ther." 1 

1  To  William  Franklin,  April  1, 1781,  Jay  MSS. 


INDEX. 


ADAMS,  C.  F.,  comments  upon 
Congress,  157 ;  upon  Franklin's 
conduct  in  peace  negotiations, 
208. 

Adams,  John,  24,  35,  36.  47,  129, 
180,  186,  241,  249,  296,  324,  355, 
356,  363;  as  to  petitions  to  the 
king,  46 ;  letter  to  Wythe,  as  to 
form  of  government,  77 ;  on  the 
New  York  Constitution,  90 ;  com- 
missioner to  treat  for  peace  with 
England,  127,  142;  his  instruc- 
tions, 158, 162 ;  disliked  by  French 
government,  161,  165 ;  arrives  in 
Paris,  to  assist  in  negotiations  for 
peace,  203;  interview  with  Jay, 
204 ;  comments  on  Franklin's 
conduct,  208 ;  suggestions  as  to 
debts  and  Tories,  208,  210,  211  ; 
interviews  with  Franklin,  209, 
214;  action  as  to  fisheries,  211, 
216;  interview  with  Vergennes, 
212 ;  comments  on  treaty,  218 ; 
on  Jay's  share  therein,  223,  228 ; 
minister  to  England,  239 ;  tribute 
to  Jay  in  connection  with  the 
Constitution,  261;  Doctor  of 
Laws,  Dublin  University,  266;  I 
invites  Jay,  267  ; .  on  nomination 
of  Jay  for  English  mission,  297 ; 
would  nominate  Jay  chief  justice, 
337 ;  correspondence  with  Jay, 
350. 

Adams,  Mrs.  John,  244. 

Adams,  John  Quincy,  comments  on 
Franklin's  conduct  in  peace  nego- 
tiations, 208. 

Adams,  Samuel,  45,  49,  163  ;  efforts 
to  keep  the  fisheries,  188. 

Alexander,  William.  See  STIRLING, 
Lord. 

Allen,  Ethan,  pamphlet  on  the  Ver- 
mont grants,  105. 

Alsop,  John,  delegate  to  Congress, 
32,  33,  53. 


Ames,  Fisher,  264;  upholds  Jay's 
treaty,  316. 

Aranda,  Marquis  d',  relations  with 
Jay,  136,  170,  171 ;  states  Spanish 
claims,  184,  185,  214;  endeavors 
to  induce  Jay  to  treat,  199. 

Ashburton,  Lord,  on  the  enabling 
act,  196. 

Bancroft,  Edward,  190. 

Banyer,  Mrs.  Maria,  341. 

Bayard,  Anna  Maria,  1. 

Bayard,  Miss  Rebecca,  to  Jay,  73. 

Beaumarchais,  Caron  de,  and  Silas 
Deane,  109;  advises  Louis  XVI. 
to  aid  the  States,  149 ;  his  own 
efforts,  150 ;  claims  favored  by 
Jay,  236. 

Benson,  Egbert,  20,  264,  318,  353. 

Betsey,  case  of  the  sloop,  292. 

Blaney,  David,  account  of  voyage, 
304. 

Bonvouloir,  49,  149 ;  influence  over 
members  of  Congress,  157. 

Boston  Port  bill,  25,  27,  31. 

Boudinot,  Elias,  264,  349. 

Burgoyne,  General,  94, 106, 107, 151, 
358. 

Burr,  Aaron,  opinion  as  to  votes 
cast  for  Jay  in  governorship  cam- 
paign, 277,  278 ;  defeats  Federal- 
ists in  New  York,  330. 

Carmichael,  William,  Jay's  secre- 
tary in  Spain,  130,  143. 

Carnahan,  Dr.,  story  of  Jay,  298. 

Chambers,  Captain,  25. 

Charles  III.  of  Spain,  relations  with 
France  and  the  United  States, 
121. 

Chisolm  v.  State  of  Georgia,  282. 

Choiseul,  opposes  aiding  the  States, 

Circourt.     See  DE  CIRCOCRT. 
Clinton,  George,  63,  65,  74,  115,  116, 


368 


INDEX, 


268,  325,  333,  334;  elected  gov- 
ernor, 92,  93,  95;  military  en- 
gagements, 93 ;  severity  towards 
royalists,  230,  270 ;  campaign 
against  Jay,  268,  273-278 ;  opposes 
Constitution,  271;  repealed  by 
reflected  governor,  272. 

Clinton,  De  Witt,  20. 

Clive,  Lord,  203. 

C  olden,  Cadwallader,  26,  82. 

Cooley,  Judge,  284. 

Cooper,  J.  Fenimore,  and  the  story 
of  the  Spy,  72,  351. 

Cooper,  Dr.  Myles;  President  of 
King's  College,  12  ;  anecdote,  13. 

Cosby  v.  Van  Dam,  82. 

Gushing,  Judge,  266,  317. 

Dayton,  Jonathan,  motion  against 

British  creditors,  295. 
Deane,    Silas,    45,    127  ;   envoy    to 

France,    49,    149,    150;     charges 

against  him,  107-110. 
De  Circourt,  on  French  efforts  to 

control  Congress,  156. 
De  Grasse,  communicates  between 

Shelburne    and    Vergennes,   192, 

193. 
Delancey,    James,    a    Tory,    Jay's 

treatment  of,  72,  227. 
Delancey,  Peter.  *  Severely  treated 

by  Jay,  72,  73. 

"  Delancey  Boys,"  ravages  by,  135. 
Dickinson,  John,  11,  49,  57. 
Doniol,  164. 
Duane,  James,  20,  28,  54  ;  delegate 

to  Congress,  32,  33  ;  pledges  New 

York  to  independence,  60 ;  as  to 

change  of  government,  53,  77,  83 ; 

and  the  Vermont  grants,  105. 
Duer,  William,  64,  65,  68. 

Ellsworth,  Oliver,  303. 

"  Federalist,"  the,  252-254. 

Fitzherbert, ,  174, 182, 183, 186  ; 

on  the  fisheries,  191 ;  authority  of, 
215,  217  ;  comments,  221  ;  tribute 
to  Jay,  223. 

Fitzmaurice,  Lord  Edmond,  "  Life 
of  Shelburne,"  193;  quoted,  196. 

Flanders,  Henry,  Lives  of  Chief  Jus- 
tices quoted,  336. 

Florida  Blanca,  Count,  130  ;  opposed 
to  French  treaty  with  United 
States,  121  ;  dealings  with  Jay, 
131 ;  concerning  the  Mississippi, 
132 ;  financial  dealings  of  Jay 
with,  133,  134 ;  expects  overtures 


as  to  the  Mississippi,  137,  138, 
233 ;  invites  Jay  to  dinner,  141 ; 
permits  Jay  to  leave,  143 ;  views 
as  to  peace  negotiations,  180,  193. 

Forbes,  ,  conspires  to  kill 

Washington,  66. 

Fox,  Charles,  167, 168, 175  ;  resigns, 
171,  174. 

Francis,  Samuel,  27. 

Franklin,  Benjamin,  49,  128,  136, 
139,  140,  161,  170,  171,  178,  356 ; 
raises  money  to  meet  drafts  of 
Congress,  134  ;  summons  Jay  to 
Paris,  142 ;  arrival  in  France, 
150 ;  commissioner  to  treat  for 
peace,  165 ;  suggestions  as  to  po- 
sition of  the  States,  167  ;  early 
views  as  to  instructions,  168 ; 
suggests  cession  of  Canada,  169 ; 
Jay's  feeling  towards  him,  169  : 
friend  of  Lord  Shelburne,  172 ; 
initial  propositions  for  peace,  173  ; 
concerning  Oswald's  commission, 
175,  178-184;  ill,  184,200  ;  doubts 
genuineness  of  Marbois  letter,  189, 
205;  disagrees  with  Jay  about 
Rayneval's  mission,  192  ;  refuses 
to  agree  to  compensating  royal- 
ists, 201,  216;  differs  from  his 
colleagues,  205  ;  comments  of  his 
biographers  thereon,  206,  207; 
friendly  relations  with  Jay,  205  ; 
comments  of  the  Adams  family 
on  his  conduct,  207 ;  finally  acts 
in  harmony  with  his  colleagues, 
208-210,  213,  214 ;  jests  with  Mrs. 
Jay,  225 ;  advises  Jay  to  sign  ad- 
dress on  Constitution,  256 ;  Doctor 
of  Laws,  Dublin  University,  266. 

Gage,  General,  14. 

Galloway,  Joseph,  proposition  to 
First  Congress,  39. 

Gardoqui,  Don  Diego  de,  232,  233, 
235,  241. 

Gates,  General,  73;  visit  to  Jay 
after  Burgoyne's  surrender,  358. 

Genet,  Edmond,  arrival  and  beha- 
vior, 287,  288. 

George  III.,  interview  with  Jay, 
303. 

Georgia,  State  of,  Chisolm  v,,  282. 

Gerard,  French  envoy  to  the  United 
States,  151,  153,  154;  interviews 
with  Jay  as  to  proposed  agree- 
ments with  Spain,  124, 125;  thinks 
well  of  Jay,  125-127 ;  urges  Con- 
gress to  agree  with  Spain,  126 ;  re- 
turns to  France,  128 ;  later  rela- 


INDEX. 


369 


tions  with  Jay,  129;  efforts  to 
control  Congress,  156, 157  ;  on  the 
fisheries,  190. 

Gerry,  Elbridge,  72,  229,  266  ;  ef- 
forts about  fisheries,  160. 

Grenville,  Thomas,  167,  168,  171, 
174,  180. 

Grenville  (William  Wyndham), 
Lord,  301 ;  negotiations  with  Jay, 
302,  305-312 ;  criticised  by  Lord 
Sheffield,  312  ;  his  own  comments, 
313. 

Griffin,  Judge,  285. 

Hale,  E.  E.,  comments,  207. 

Hamilton,  Alexander,  22,  24, 53,  230, 
251,  252,  258,  2G1,  302,  303,  356  ; 
to  Jay,  about  treaty  of  peace,  223  ; 
feelings  towards  royalists,  270 ; 
hostility  to,  272,  296  ;  concerning 
French  affairs  and  proclaiming 
neutrality,  286  ;  proposes  Jay  for 
English  mission,  297 ;  befriends 
Jay's  treaty,  315,  316 ;  wishes  Jay 
to  convene  legislature  in  order  to 
redistrict  the  State,  331  ;  share 
in  Washington's  farewell  address, 
359. 

Hammond,  George,  English  minister 
to  United  States,  296. 

Hammond,  J.  D.,  his  Political  His- 
tory of  New  York  quoted,  323, 
326,  336. 

Harper,  R.  G.,  323. 

Harrison,  Benjamin,  49. 

Hartley,  David,  sent  to  Paris  to  ne- 
gotiate, 220  ;  praises  Jay,  228. 

Hawley,  Major,  to  E.  Gerry,  70. 

Hayburn's  case,  268. 

Heard,  Colonel  Nathaniel,  50. 

Henfield,  Gideon,  case  of,  290. 

Henry,  Patrick,  on  voting  in  Con- 
gress, 37 ;  opposed  to  change  of 
government,  54 ;  appearance  in 
court,  285. 

Howe,  Lord,  202,  203. 

Hylton,  Ware's  Executors,  v.,  285. 

Iredell,  James,  powers  of  Congress, 
36  ;  on  Patrick  Henry,  285. 

Jay,  Ann,  341. 

Jay,  Augustus,  1. 

Jay,  Frederick,  44,  117,  135,  241. 

Jay,  James,  2,  3,  8,  117. 

Jay,  John,  heredity,  7  ;  childhood, 
8  ;  school  life,  8,  9  ;  college  career, 
9-12  ;  anecdote  of  college  life  un- 
der Dr.  Cooper,  13 ;  chooses  the 


law  as  a  profession,  12,  14 ;  rela- 
tions with  Kissam,  whose  office 
he  enters,  16,  19 ;  request  for  a 
horse,  17  ;  admitted  to  the  bar,  18; 
practice,  18,  19,  21 ;  Secretary  to 
State  Boundary  Commission,  21 ; 
marries,  21  ;  traits,  22 ;  political 
opinions,  23  ;  member  of  the  Com- 
mittee of  Fifty-one,  27,  28  ;  dele- 
gate to  Congress,  32,  33,  35 ;  on 
Committee  to  State  rights  of  Col- 
onies, 36;  concerning  voting  in 
Congress,  37  ;  advocates  suspen- 
sion of  trade  with  England,  38; 
scheme  for  settlement,  39  ;  drafts 
address  to  people  of  Great  Brit- 
ain, 39  ;  member  of  Committee  of 
Inspection,  41 ;  elected  to  Provin- 
cial Convention,  43;  member  of 
Committee  of  Observation,  44 ; 
drafts  letter  to  Lord  Mayor  of 
London,  44 ;  member  of  second 
Continental  Congress,  45  ;  drafts 
address  to  Canadians,  45;  and 
other  papers,  45,  et  seq.,  48-50  ; 
letters  to  his  wife,  50,  51 ;  blames 
the  assault  on  Rivington's  press, 
52  ;  appointed  colonel,  52,  63  ;  del- 
egate to  the  New  York  Provincial 
Congress,  53 ;  drafts  resolutions  as 
to  independence,  54  ;  his  position 
at  time  of  Declaration  of  Inde- 
pendence, 56  ;  action  in  Provincial 
Congress  concerning  the  declara- 
tion, 59,  60 ;  concerning  the  mi- 
litia, 61  ;  on  the  Secret  Military 
Committee,  62  ;  services  in  this 
connection,  63,  64 ;  chairman  of 
committee  to  organize  new  form 
of  government,  64,  76  83,  84-87  ; 
89-91 ;  effort  to  rid  the  State  of 
Tories,  66-74;  drafts  address  of 
encouragement  from  Provincial 
Congress  to  constituents,  74  ;  mem- 
ber of  Council  of  Safety,  88  ;  Chief 
Justice  of  New  York,  88,  95-97  ; 
on  Romanism,  86  ;  services  on  the 
Council  of  Safety  in  governing  the 
State,  91  ;  refuses  to  be  candidate 
for  governorship,  92 ;  suggests  that 
legislature  meet  at  Albany,  94  ; 
visit  to  Washington,  95 ;  address 
to  grand  jury,  96  ;  tries  criminals, 
98,  99 ;  retires  for  vacation  at 
farm,  98 ;  as  member  of  Council 
of  Revision,  induces  veto  of  many 
bills,  100  -  104 ;  concerning  the 
quarrel  over  the  Vermont  Grants, 
106,  107,  114;  sent  to  Congress, 


370 


INDEX. 


107  ;  position  in  the  affairs  of  Si- 
las Deane,  108-110 ;  elected  Pres- 
ident of  Congress,  111 ;  as  such, 
writes  letter  as  to  finances  of  the 
country,  112  ;  resigns  the  Chief 
Justiceship  and  goes  into  retire- 
ment, 116-119  ;  interviews  with 
Gerard  as  to  proposed  agreements 
with  Spain,  124,  125 ;  changes  his 
views  in  this  matter,  126  ;  highly 
esteemed  by  Gerard,  125,  127  ;  re- 
ceives votes  for  position  of  Com- 
missioner to  treat  with  England, 
127  ;  Minister  to  Spain,  127  ;  later 
relations  with  Gerard,  129;  em- 
barrassing situation  on  arrival  in 
Spain,  130  ;  dealings  with  Spanish 
Court,  131 ;  annoyed  by  drafts 
drawn  upon  him  by  Congress,  133, 
134 ;  and  by  personal  incidents, 

135  -  137  ;    opinion   of    d'Aranda, 

136  ;  receives  unwelcome  instruc- 
tions as  to  navigation  of  Missis- 
sippi,  138  ;    efforts   to  negotiate 
with  Spain,  138,  139;  opinion  as 
to  mediation  of  Russia  and  Ger- 
many, 139 ;  views  of  Spanish  pol- 
icy, 140  ;  confidence  in  friendship 
of  France,  140 ;  later  views  as  to 
France  and  Spain,  141  ;  invited  to 
dinner  by  Florida    Blanca,   141; 
summoned  to  Paris  by  Franklin, 
142 ;  leaves  Spain,   143  ;   discrim- 
inates between  French  people  and 
French    government,    146 ;     con- 
demns  Congress,   157 ;    Commis- 
sioner to  treat  for  peace,  142, 165 ; 
Luzerne's  opinion  of    him,   165 ; 
reaches  Paris,   166,   169;   feeling 
towards  Franklin,  169;  and   the 
French,  170 ;  enters  on  business, 
170  ;  remarks  concerning  tenor  of 
Oswald's    Commission,   176,   178, 
181,   182 ;     desires  a    "  lasting  " 
peace,  176;  alienated  from  Eng- 
land,  178  ;    opinion  of   policy  of 
France     and     Spain,    179,     184; 
proposals  for    boundaries  to  be 
adopted  in  treaty,  185-187;   sus- 
picions aroused   by  Marbois   let- 
ter, 188  ;  hears  of  Rayneval's  mis- 
sion to  Shelburne,  191 ;  and    in- 
duces Vaughan  to  counteract  it, 
192,   199;  declines  to  treat  with 
Spain,  except  on  an  equal  footing, 
199;  refuses  to  be  saddled  with 
engagements  of  France  to  Spain, 
200 ;   refuses  to  compensate  roy- 
alists, 201,  214,  216 ;  position  in 


Paris,  sketched  by  Adams,  204; 
maintains  friendly  relations  with 
Franklin,  206;  further  negotia- 
tions, 210,  212,  214  ;  declines  to 
go  to  England,  213;  in  accord 
with  colleagues,  213 ;  prefers  Eng- 
land to  France,  for  commerce, 
221  ;  deserves  merit  for  success  of 
negotiations,  223,  224 ;  Luzerne's 
praise  of,  224 ;  goes  to  England, 
224  ;  behavior  there  towards  fel- 
low countrymen,  226  ;  refuses  ap- 
pointments to  English  and  French 
courts,  227  ;  returns  home,  228 ; 
secretary  for  foreign  affairs,  229, 
231  ;  lenient  towards  royalists, 
230,  270  ;  declines  to  be  candidate 
for  governorship,  231  ;  negotia- 
tions as  to  Mississippi,  233-235, 
245;  favors  Beaumarchais,  236; 
suggestions  as  to  commerce,  con- 
suls, etc.,  237,  238,  241 ;  concern- 
ing war  with  Algiers,  239  ;  as  to 
violations  of  treaty  of  peace,  240  ; 
control  over  mails,  241  ;  behavior 
in  matter  of  appointments,  etc., 
241 ;  agent  in  boundary  contro- 
versy, 242  ;  on  territorial  govern- 
ments, 242  ;  trustee  of  Emanci- 
pation Society,  242 ;  delegate  to 
Episcopal  Convention,  243  ;  social 
duties,  243, 244 ;  apprehensions  as 
to  condition  of  the  country,  246, 
256  ;  comments  on  the  Confeder- 
ation, 247  ;  opinions  on  these  mat- 
ters, 248,  249;  on  the  Annapolis 
Convention,  250 ;  defeated  as  can- 
didate for  convention,  251 ;  con- 
nection with  the  "Federalist," 
252-254 ;  concern  in  the  Doctors' 
Mob,  254;  delegate  to  Constitu- 
tional Convention,  255,  259 ;  pub- 
lishes an  address  in  favor  of  Con- 
stitution, 256  ;  predictions,  257  ; 
prepares  letter  advising  amend- 
ments, 260  ;  part  in  effecting  rat- 
ification, 261  ;  offered  choice  of 
positions  in  new  government,  262  ; 
prefers  chief  justiceship,  263  ;  his 
action  in  this  office,  264  ;  on  New 
England  circuit,  265-267  ;  personal 
appearance,  265 ;  Doctor  of  Laws, 
H.  U.,  266;  University  of  Dub- 
lin, 266  ;  protests  against  Pension 
Act,  267  ;  candidate  for  governor- 
ship, 268,  272-278;  takes  his  de- 
feat philosophically,  279,  280 ;  his 
robe  as  Chief  Justice,  279  ;  recep- 
tion, after  his  defeat,  '280-282; 


INDEX. 


371 


opinion  in  Chisolm  v.  Georgia, 
282-284  ;  remarks  on  Patrick  Hen- 
ry, 285  ;  on  receiving  a  minister 
from  a  French  regent,  and  pro- 
claiming neutrality,  286 ;  state- 
ment concerning  Genet,  288 ;  sus- 
tains proclamation  of  neutrality 
as  law,  289-292 ;  in  case  of  sloop 
Betsy,  292  ;  resigns  as  Chief  Jus- 
tice, 293  ;  character  as  a  jurist,  293 ; 
nominated  for  English  mission, 
297,  298,  299 ;  letters  to  wife  on 
political  situation,  298  ;  sails,  300 ; 
meets  the  English  ministers,  301  ; 
negotiates,  302,  305-312;  inter- 
view with  the  king,  303 ;  signs 
treaty,  303 ;  comments  thereon, 
312;  his  English  friends,  313; 
return  home,  314 ;  assaults  on 
his  treaty  and  himself,  313-317; 
elected  governor,  318 ;  declines 
extradition,  319  ;  behavior  during 
yellow  fever  epidemic,  319-321 ; 
speech  at  opening  of  legislature, 
322  ;  views  on  French  revolution, 
323-325  ;  refuses  to  please  Tam- 
many society,  325 ;  recommenda- 
tions, 325 ;  declines  to  pardon, 
326;  concerning  appointment  of 
Major  Hale,  326;  again  elected 
governor,  327 ;  action  at  time  of 
X  Y  Z  correspondence,  327  ;  as  a 
slaveholder,  329;  receives  votes 
for  presidency,  330;  eulogy  on 
Washington,  330 ;  refuses  to  con- 
vene legislature  to  redistrict  the 
State,  331 ;  recommendations  in 
speech  to  legislature,  332;  de- 
clines renomination,  333 ;  contest 
with  council  over  nomination  of 
sheriff,  333  ;  principles  concern- 
ing appointments  and  dismissions 
for  political  causes,  335-337 ;  de- 
clines to  be  again  Chief  Justice, 
337  ;  reply  to  complimentary  ad- 
dress, 338;  retires  to  Bedford, 
340  ;  death  of  wife,  340  ;  children, 
341 ;  farming  interests,  342-344 ; 
fondness  for  animals,  344 ;  on  the 
reform  bill,  345 ;  concerning 
rights  of  flowage,  345 ;  on  taxa- 
tion, 346 ;  on  the  Missouri  ques- 
tion and  slavery,  347  ;  disapproves 
war  of  1812,  348 ;  connected  with 
Bible  and  other  societies,  349 ;  de- 
clines to  stand  godfather  to  Mor- 
ris's child,  350 ;  correspondence 
with  John  Adams,  350  ;  death  and 
burial,  354 ;  comments  on  his 


character  and  career,  354,  et  seq.  ; 
his  friends,  356  ;  concerning  Bur- 
goyne's  surrender,  358  ;  concern- 
ing Washington's  Farewell  Ad- 
dress, 359;  religious  faith,  360; 
general  political  principles,  361 ; 
alleged  aristocratic  tendencies, 
3G3-365 ;  habits  of  dress,  365. 

Jay,  Mrs.  John,  50,  51,  73,  94,  111, 
118,  279 ;  residence  at  Passy,  224- 
226;  social  duties,  243;  death, 
341. 

Jay,  Mary,  1. 

Jay,  Pierre,  1. 

Jay,  Peter,  1,  10,  14,  17,  56,  116; 
mercantile  career,  2  ;  traits,  2-7  ; 
a  Whig,  6;  letter  to  John,  6; 
about  John,  8  ;  letter  to  John  as 
to  profession,  12. 

Jay,  Peter,  Jr.,  8. 

Jay,  Peter  Augustus,  300,  328,  351. 

Jay,  Nancy,  8. 

Jay,  Sarah,  341. 

Jay,  William,  341 ;  anecdote  quoted, 
335 ;  quoted,  347. 

Jefferson,  Thomas,  40,  46,  47,  142 ; 
165,  239,  262,  288,  291,  297;  as 
to  navigation  of  the  Mississippi, 
234. 

Johnson,  Dr.  Samuel,  President  of 
King's  College,  10 ;  letter  to  Jay, 
11 ;  retirement,  12. 

Jones,  John  Paul,  affection  for  Jay, 
356. 

Jones,  Samuel,  20. 

Jones,  Thomas,  banished,  67. 

Kent,  James,  353 ;  on  the  New 
York  Constitutional  Convention, 
89 ;  on  the  "  Federalist,"  252 ;  fol- 
lows Jay's  charge  to  grand  jury, 
291. 

King,  Rufus,  350 ;  opinion  as  to 
votes  cast  for  Jay  in  governorship 
campaign,  277,  279 ;  statement 
concerning  Genet,  288. 

Kissam,  Benjamin,  20;  takes  Jay 
into  his  office,  14 ;  relations  with 
Jay,  16-19. 

Kissam,  Dr.  Samuel,  letter  to,  21. 

Knox,  Henry,  27. 

Lamb,  John,  28,  31,  32,  245. 

Lansdowne,  Marquis  of.  See  SHEL- 
BURNE. 

Lansing,  James,  251. 

Laurens,  Henry,  irritated  in  the 
Lee-Deane  matter,  resigns  presi- 
dency of  Congress,  110 ;  drafts 


372 


INDEX. 


drawn  upon  him,  133 ;  commis- 
sioner to  treat  for  peace,  142, 165  ; 
share  in  the  treaty,  216. 

Lawrence,  W.  B.,  190. 

Lee,  Arthur,  assails  Silas  Deane, 
108,  110,  127;  leaves  Spain  in 
disgust,  128 ;  commissioned  to 
France,  150. 

Lewis,  Francis,  27,  53. 

"  Liberty  Boys,"  The,  20,  24, 26,  27, 
29,  32,  56,  58. 

Liberty,  sons  of.  See  LIBERTY  BOYS. 

Lincoln,  General,  266. 

Livingston,  Brockholst,  129,  137. 

Livingston,  Edward,  265. 

Livingston,  H.  B.,  13,  106. 

Livingston,  Philip,  delegate  to  Con- 
gress, 32,  33. 

Livingston,  Robert  R.,  18,  55, 
64 ;  chancellor,  88 ;  concerning 
finances,  112;  election  aided  by 
Luzerne,  158 ;  secretary  for  for- 
eign affairs,  229,  231 ;  deserts  Jay 
for  Clinton,  275 ;  defeated  by  Jay, 
327. 

Livingston,  Robert  R.,  Jr.,  20. 

Livingston,  Sarah,  Jay's  wife,  21. 

Livingston,  William,  11,  20,  21,  35, 
46,  49,  53. 

Lloyd,  James,  261. 

Lockyier,  Captain,  25. 

Lodge,  H.  C.,  comments,  207. 

London,  The,  tea  ship,  25. 

Louis  XVI.,  146  ;  opposed  to  aiding 
the  United  States,  147,  150. 

Low,  Isaac,  31 ;  delegate  to  Con- 
gress, 32,  33,  43. 

Lowell,  John,  249. 

Luzerne,  Count  de  la,  178,  188,  229  ; 
influence  over  Congress,  138,  156; 
instructions  to,  154, 155 ;  influence 
in  American  affairs,  158-165,  opin- 
ion of  Jay,  165 ;  Vergennes'  letter 
to,  about  boundaries,  186;  as  to 
the  fisheries,  190 ;  views  as  to  po- 
sition of  the  States,  190;  com- 
ments on  Jay,  224. 

Madison,  James,  235,  240 ;  and  the 
"  Federalist,"  252. 

Maine,  Sir  Henry,  78  ;  on  American 
doctrine  of  neutrality,  289. 

Malouet,  Pierre  Victor,  opposes 
French  aid  to  the  States,  147. 

Marbois,  Marquis,  efforts  to  control 
Congress,  156,  160;  his  inter- 
cepted letter,  188-190,  205. 

Marshall,  John,  283;  a  political 
opinion,  331. 


Maryland,  State   of,  McCulloch  v.t 

282. 
Maryland,  State  of,  v. Van  Staphorst, 

Masserana,  Prince,  kindness  to  Jay, 
136. 

Maurepas,  Count  de,  opposed  to 
France  aiding  the  States,  147. 

McComb,  Alexander,  in  governor- 
ship campaign,  274,  279. 

McCulloch  v.  State  of  Maryland, 
284. 

McDougall,  Alexander,  28,  31,  32, 
34,  356;  friendly  relations  with 
Jay,  52,  63 ;  change  of  tone  in 
public  matters,  58. 

McVickar,  Professor,  anecdote  as  to 
Washington's  Farewell  Address, 
359. 

Mifflin,  Governor,  and  yellow  fever, 
320. 

Mirales,  Spanish  envoy,  124,  127. 

"  Mohawks,"  the,  24. 

Monroe,  James,  242,  296. 

Montmorin,  Count  de,  French  min- 
ister at  Madrid,  121,  137,  148, 
170,  171,  178;  views  of  Spanish 
policy,  122;  opinion  of  Florida 
Blanca,  130  ;  communications  with 
Jay,  131,  137,  139,  140,  141,  143  ; 
suggestions  as  to  peace  negotia- 
tions, 180 ;  on  the  policy  of  Spain, 
187 ;  would  sound  Lord  Shelburne, 
192. 

"  Moot,"  the,  established,  19. 

Morris,  Gouverneur,  19,  20,  90,  98, 
291,  351 ;  fears  of  democratic  con- 
trol, 34  ;  on  plan  for  organizing  a 
new  form  of  government,  64,  84  ; 
on  committee  to  examine  disaf- 
fected persons,  67,  70  ;  warned  as 
to  Toryism,  74  ;  visits  Washing- 
ton's camp,  95 ;  on  the  Vermont 
grants,  106 ;  in  the  matter  of  Si- 
las Deane,  108;  condemns  char- 
acter of  Congress,  157  ;  applica- 
tion to  Jay  for  political  appoint- 
ment, 336 ;  asks  Jay  to  stand 
godfather,  350 ;  affection  for  Jay, 
356. 

Morris,  Lewis,  61. 

Morris,  Robert,  265 ;  concerning 
Silas  Deane,  108. 

Muhlenberg,  Peter,  saves  Jay 'a 
treaty,  316. 

Munro,  Peter  Jay,  117,  129. 

Murray,  George,  9. 
j  Murray,    Lindley,    remarks    upon 
I      Jay,  in  his  youth,  16. 


INDEX. 


373 


Nancy,  the,  tea  ship,  25. 

Necker,  Jacques,  opposed  to  France 

aiding  the  States,  147. 
North,  Lord,  166. 

O'Reilly,  Count,  kindness  to  Jay, 
130. 

Osborne,  Sir  Danvers,  suicide,  4. 

Oswald,  Richard,  167,172,  174,  180; 
initial  dealings  with  Franklin, 
173;  question  as  to  his  commis- 
sion, 175-184,  196 ;  remarks  con- 
cerning Jay,  177  ;  his  new  com- 
mission, 196,  197,  199  ;  report  on 
progress  of  negotiations,  200-202  ; 
further  negotiations,  etc.,  211- 
214 ;  recalled,  220. 

Paine,  Robert  Treat,  315. 

Paine,  Thomas,  opinion  of  Ver- 
gennes,  147  ;  in  pay  of  France, 
157 ;  assails  Jay,  324. 

Peloquin,  David,  4-6,  9,  12. 

Peloquin,  Stephen,  2. 

Peters,  Richard,  342,  343. 

Pickering,  Timothy,  307,  347. 

Pinckney,  Thomas,  minister  to  Eng- 
land, 296. 

Quebec  Act,  the,  87. 

Rayneval,  Joseph,  164 ;  on  the 
boundary  question,  185,  186,  200, 
203;  on  the  fisheries,  191,  203; 
journey  to  England,  191-195;  com- 
ments on  treaty,  219. 

Revere,  Paul,  28,  29. 

Rivington,  James,  the  Tory  editor, 
27  ;  his  press  destroyed,  52. 

Robinson,  Dr.  Beverly,  to  Jay,  as 
to  allegiance,  73. 

Rockingham,  Marquis,  166. 

Rogers,  Nicholas,  and  Silas  Deane, 
109. 

Romer,  Lawrence,  11. 

Samson,  the,  25. 

Savage,  James,  315. 

Schuyler,  George,  63,  92,  95,  107, 

230 ;  candidate  for  governorship, 

92 ;  military  anxieties,  93. 
Schuyler,    Philip,    advises    Jay    to 

convene  legislature,  to  redistrict 

New  York,  331. 
Scott,  John  Morin,  20. 
Seabury,  Bishop,  52. 
Sharp,  James,  295. 
Sheffield,    Lord,    criticises     Jay's 

treaty,  312. 


Shelburne,  Lord,  164,  167;  prime 
minister,  171 ;  views  on  American 
independence,  172,  174  ;  concern- 
ing Franklin's  suggestions,  175 ; 
dealings  with  Rayneval  and 
Vaughan,  192-197  ;  communicates 
with  de  Vergennes,  through  de 
Grasse,  192;  advocates  cause  of 
Tories,  213,  214 ;  resolved  to  make 
treaty,  215;  driven  from  office, 
220 ;  consequences,  222. 

Smith,  Melancthon,  258,  260. 

Smith,  William,  15,  20. 

Sparks,  Jared,  comments,  206. 

Spencer,  Ambrose,  323. 

Stamp  Act,  4,  5,  16,  24,  25. 

Stirling,  Lord,  50. 

Stoope,  Rev.  Peks,  9. 

Story,  Joseph,  on  Jay,  293. 

Strachey,  Henry,  sent  to  Paris  to 
treat,  202,  208;  negotiates,  210, 
211 ;  returns  to  England  with 
draft  of  treaty,  210;  return  to 
Paris,  215;  further  negotiations, 
216,  217. 

Sullivan,  John,  163. 

Sumner,  Professor  Wm.  G.,  quoted 
as  to  Jay's  treaty,  312. 

Tompkins,  Daniel  D.,  on  law  gov- 
erning nominations  in  New  York, 
334. 

Troup,  Colonel,  visit  to  Jay,  358. 

Trumbull,  John,  sails  with  Jay  as 
secretary,  300. 

Trumbull,  Jonathan,  62,  362. 

Tryon,  Governor,  50 ;  activity  of, 
67. 

Turgot,  opposes  aiding  the  States, 
147,  149. 

Van  Cortlandt,  Jacobus,  1. 

Van  Dam,  Cosby  v.,  82. 

Van  Kleeck,  62. 

Van  Schaack,  Peter,  15, 20,  226,  229, 
353,  356  ;  banished  for  Toryism, 
69,  71,  73. 

Van  Staphorst  v.  State  of  Maryland, 
267. 

Vaughan,  Benjamin,  sent  to  Paris, 
172 ;  induced  by  Jay  to  go  to 
London  to  counteract  Rayneval, 
192,  195,  196,  198,  199,  214. 

Vergennes,  Charles  Gravier,  Count 
de,  126,  170;  concerning  treaty 
between  the  States  and  France, 
120;  dealings  with  Spain,  123; 
advice  as  to  Spanish  position,  141 ; 
confidence  of  Congress  in,  144 ; 


374 


INDEX. 


undeserved,  145  ;  reasons  for  de- 
siring to  aid  the  States,  147,  148  ; 
makes  treaties  of  alliance  and 
of  commerce,  151 ;  his  construc- 
tion of  them,  153  ;  anticipates 
ruin  of  England,  153  ;  opposes 
American  claims,  154,  155,  159, 
161,  1G5  ;  advises  America  to  con- 
fide in  Spain,  154 ;  efforts  to  in- 
fluence American  policy  concern- 
ing peace  negotiations,  161  ;  pro- 
poses separate  negotiations,  167, 
168  ;  selfish  schemes,  171 ;  desires 
a  "  lasting  "  peace,  176  ;  opinions 
as  to  tenor  of  Oswald's  commis- 
sion, 178, 180, 181 ;  as  to  bounda- 
ries of  the  United  States,  185, 186, 
222 ;  disowns  Rayneval's  state- 
ment on  this  matter,  186 ;  letter 
from  Marbois  to,  188,  189  ;  Lu- 
zerue's  letter  to,  about  fisheries, 
190  ;  communications  of  de  Grasse 
to,  192  ;  would  have  Jay  treat  with 
Aranda,  199 ;  Franklin's  opinion 
of,  205 ;  further  light  on  his  pol- 
icy, 212 ;  advocates  cause  of  To- 
ries, 213  ;  informed  of  conclusion 


of  treaty,  217  ;  schemes  as  to  ne- 
gotiations, 218,  221  ;  comments 
on  result,  219,  222 ;  and  on  Amer- 
ican negotiations,  224. 

Ware's  Executors  v.  Hylton,  285. 

Washington,  George,  declaration  to 
army,  48,  02,  63,  83,  84,  95,  99, 
113,  114,  246,  249,  257,  261,  262, 
272,  285,  302,  308,  324,  343,  356, 
363  ;  conspiracy  against,  67  ;  does 
not  wish  cession  of  Canada,  169  ; 
makes  Jay  Chief  Justice,  263;  pro- 
claims neutrality,  286,  289,  292; 
policy  of  peace,  296  ;  sends  envoy 
to  England  296 ;  Jay's  eulogy 
on,  330  ;  his  Farewell  Address, 
359. 

Wharton,  Francis,  on  Jay,  293. 

Wilberforce,William,  remarks  about 
Jay,  314  ;  correspondent,  342, 
345. 

Wythe,  George,  77. 

Yates,  Abraham,  65. 
Yates,  Robert,  65;    nominated  for 
governorship,  272. 


American 


A  Series  of  Biographies  of  Men  famous  in  the 

Political  History  of  the  United  States.     Edited  by 

JOHN  T.  MORSE,  Jr.     Each  volume,  i6mo, 

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CRITICAL  NOTICES. 


JOHN  QUINCY  ADAMS.      That  Mr.  Morse's   con- 

elusions  will  in  the  main 

be  those  of  posterity  we  have  very  little  doubt,  and  he  has  set  an 
admirable  example  to  his  coadjutors  in  respect  of  interesting 
narrative,  just  proportion,  and  judicial  candor.  —  New  York 
Evening  Post. 

TTAMTTTDTtf      Tne  biography  of  Mr.  Lodge  is  calm  and 
dignified  throughout.     He   has  the  virtue 

—  rare  indeed  among  biographers  —  of  impartiality.  He  has 
done  his  work  with  conscientious  care,  and  the  biography  of 
Hamilton  is  a  book  which  cannot  have  too  many  readers.  It  is 
more  than  a  biography  ;  it  is  a  study  in  the  science  of  govern- 
ment. —  St.  Paul  Pioneer-Press. 

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just.  —  The  Dial  (Chicago). 

^f  ATfT^n  J\T      Professor   Sumner  has  ...  all  in   all,  made 
the  justest  long  estimate  of  Jackson  that  has 
had   itself   put   between   the   covers   of   a   book.  —  New    York 
Times. 


RANDOLPH      ^^e  k°°k  has  been  to  me  intensely  inter- 
esting. .  .  It  is  rich  in  new  facts  and  side 

lights,  and  is  worthy  of  its  place  in  the  already  brilliant  series 
of  monographs  on  American  Statesmen.  —  Prof.  MOSES  CoiT 
TYLER. 

MONROE  ^n  c^earness  °f  style,  and  in  all  points  of  liter- 
ary workmanship,  from  cover  to  cover,  the 
volume  is  well-nigh  perfect.  There  are  also  a  calmness  of  judg- 
ment, a  correctness  of  taste,  and  an  absence  of  partisanship 
which  are  too  frequently  wanting  in  biographies,  and  especially 
in  political  biographies.  —  American  Literary  Churchman  (Bal- 
timore). 

'JEFFERSON      ^he  book  is  exceedingly  interesting  and 
readable.     The  attention  of  the  reader  is 

strongly  seized  at  once,  and  he  is  carried  along  in  spite  of  him- 
self, sometimes  protesting,  sometimes  doubting,  yet  unable  to 
lay  the  book  down.  —  Chicago  Standard. 

IV  p?  7?  C"7V7  p        It  will  be  read  by  students  of  history;  it  will 

V  V    J--J  J-J  O  J.   J.^  J.\-  •  i  *  ill  i  r  f  • 

be  invaluable  as  a  work  of  reference  ;  it 
will  be  an  authority  as  regards  matters  of  fact  and  criticism  ;  it 
hits  the  keynote  of  Webster's  durable  and  ever-growing  fame  ; 
it  is  adequate,  calm,  impartial  ;  it  is  admirable.  —  Philadelphia 
Press. 


*s  one  °^  ^ie  most  .carefully  prepared  of 
v  vaiuable  volumes,  .  .  .  abound- 
ing in  information  not  so  readily  accessible  as  is  that  pertaining 
to  men  more  often  treated  by  the  biographer.  .  .  .  The  whole 
work  covers  a  ground  which  the  political  student  cannot  afford 
to  neglect.  —  Boston  Correspondent  Hartford  Courant. 

The  execution  of  the  work  deserves  the  high- 
egt  praise>     It  isyery  readable,  in  a  bright 

and  vigorous  style,  and  is  marked  by  unity  and  consecutiveness 

of  plan.  —  The  Nation  (New  York). 

<y/O77VV  dnAM'Z  A  good  piece  of  literary  work.  ...  It 
JOH1M  AUAMb.  co*ers  fhe  ground  t£oroughly>  and 

gives  just  the  sort  of  simple  and  succinct  account  that  is  wanted. 
—  Evening  Post  (New  York). 

Well  done,  with  simplicity,  clearness,  pre- 
cision, and   judgment,  and   in   a  spirit   of 

moderation  and  equity.     A  valuable  addition   to  the  series.  — 

New  York  Tribune. 

SAMUEL  ADAMS, 

This  biography  is  a  piece  of  good  work  —  a  clear  and  simple 
presentation  of  a  noble  man  and  pure  patriot  ;  it  is  written  in  a 
spirit  of  candor  and  humanity.  —  Worcester  Spy. 

"^n  mterestmg  addition  to  our  political  liter- 
ature, and  will  be  of  great  service  if  it  spread 
an  admiration  for  that  austere  public  morality  which  was  one  of 
the  marked  characteristics  of  its  chief  figure.  —  The  Epoch 
(New  York). 


^e  have  m  tnis  l'fe  °f  Henry  Clay  a  biography  of 
one  of  the  most  distinguished  of  American  states- 
men, and  a  political  history  of  the  United  States  for  the  first 
half  of  the  nineteenth  century.  In  each  of  these  important  and 
difficult  undertakings,  Mr.  Schurzhas  been  eminently  successful. 
Indeed,  it  is  not  too  much  to  say  that,  for  the  period  covered, 
we  have  no  other  book  which  equals  or  begins  to  equal  this  life 
of  Henry  Clay  as  an  introduction  to  the  study  of  American  pol- 
itics. —  Political  Science  Quarterly  (New  York). 

HENR  Y.  Pr°fessor  Tyler  has  not  only  made  one  of  the 
best  and  most  readable  of  American  biographies  ; 
he  may  fairly  be  said  to  have  reconstructed  the  life  of  Patrick 
Henry,  and  to  have  vindicated  the  memory  of  that  great  man 
from  the  unappreciative  and  injurious  estimate  which  has  been 
placed  upon  it.  —  New  York  Evening  Post. 

MORRIS.  ^r>  Roosevelt  has  produced  an  animated  and 
intensely  interesting  biographical  volume.  .  .  . 
Mr.  Roosevelt  never  loses  sight  of  the  picturesque  background 
of  politics,  war  -governments,  and  diplomacy.  —  Magazine  of 
American  History  (New  York). 


No  more  generous,  appreciative,  or  just 
biography,  and  no  more  interesting  or 
philosophical  piece  of  political  history  has  appeared  in  this  valu- 
able series  .  .  .  than  this  absorbing  book.  ...  To  give  any  ad- 
equate idea  of  the  personal  interest  of  the  book,  or  its  intimate 
bearing  on  nearly  the  whole  course  of  our  political  history  would 
be  equivalent  to  quoting  the  larger  part  of  it.  —  Brooklyn  Eagle. 

WASHINGTON      ^r'  Lodge  has  written   an  admirable 
biography,  and  one  which  cannot  but 

confirm  the  American  people  in  the  prevailing  estimate  concern- 
ing the  Father  of  his  Country ;  but  its  deepest  and  most  impor- 
tant significance  appears  to  us  to  consist  in  its  testimony  to  the 
exaltation  and  the  uniqueness  of  a  character  whose  like  comes 
seldom  to  the  world,  and  only  in  periods  of  great  stress  and  cri- 
sis. —  ATew  York  Tribune. 

ff?/i  ATKTr  /TV      ^e   nas   managed  to    condense   the  whole 
mass   of   matter  gleaned   from  all   sources 

into  his  volume  without  losing  in  a  single  sentence  the  freedom 
or   lightness   of   his    style  or  giving   his  book  in  any  part  the 
H< 


crowded  look  of  an  epitome.  He  has  plenty  of  time  and  plenty 
of  room  for  all  he  wishes  to  say,  and  says  it  in  the  very  best  and 
most  interesting  manner. —  The  Independent  (New  York). 


*#*  For  sale  by  all  Booksellers.    Sent,  post-paid,  on  receipt  of 
price  by  the  Publishers, 

HOUGHTON,   MIFFLIN   AND   COMPANY, 
4  PARK  ST.,  BOSTON;  n  EAST  I7TH  ST.,  NEW  YORK. 


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LIBRARY,  UNIVERSITY  OF  CALIFORNIA,  DAVIS 

Book  Slip-25m-6,'66(G3S55s4)458 


Pellew,  G. 
John  Jay. 


E302.6 

JU 

Pi* 


LIBRARY 

UNIVERSITY   OF   CALIFORNIA 
DAVIS 


